Ayre v. State

Digges, J., delivered the opinion of the Court. Murphy, C. J., concurs in the result. The two defendants prosecuting this appeal, Baltimore News Center, Inc. and its corporate officer, Thomas Martin Ayre, were convicted by a jury in the Criminal Court of Baltimore for distributing obscene matter in violation of this State’s criminal code. Preliminarily, the State contends by its motion to dismiss this appeal that neither the record in this criminal cause nor the particular substantive issue we address is properly before this Court, views with which, after a brief explication of the facts, we shall express our disagreement.

Moreover, reaching the merits, we conclude that reversals of these judgments are necessitated because of the absence of valid charging documents, and it is thus unnecessary that we further review the several additional issues raised by counsel for the petitioners. On May 9, 1979, Baltimore City police officer William Bertazon entered the establishment of the News Center at 428 East Baltimore Street and purchased from petitioner Ayre for $12.50 a magazine denominated "Swedish Erotica #22.” Based on this purchase, charging documents were issued alleging that each petitioner "on or about 9 May, 1979 at 428 E. Baltimore Street unlawfully did sell a magazine entitled 'Swedish Erotica #22’ which was reviewed by Judge Ciotola and found to be obscene in violation of Annotated Code of Maryland, Article 27, Section 418” (1957,1976 Repl. Vol., 1980 Cum. Supp.).

The trial on these charges resulted in guilty verdicts against both defendants, and, upon sentencing, appeals were noted on February 14,1980, to the Court of Special Appeals. Two successive motions were later filed in that court by petitioners under Maryland Rule 1025 b to extend the time for transmission of the record, necessitated by the inability of the court stenographer to transcribe ¹⁵⁸ the testimony so that the record could be forwarded to the appellate court within the 60-day time limit imposed by Rule 1025 a. When a third motion to extend the time for filing the record was docketed one day late, on August 14, 1980, the intermediate appellate court denied the relief sought as untimely, observing that the court was "without jurisdiction to grant relief requested.” Upon denial by the appellate court of the petitioners’ motion for reconsideration, the Criminal Court of Baltimore, when informed of this action, struck on September 17, 1980, the order for appeal, ostensibly acting pursuant to the authority vested in it by Rule 1013. This dismissal, however, with the consent of the assistant state’s attorney, was vacated by the trial court twelve days later and the clerk of the criminal court was ordered to "transmit the record to the Clerk of the Court of Special Appeals for that Court’s disposition.” After the record was forwarded to the appellate tribunal, the State moved the intermediate court to dismiss the "reinstated” appeal (as the assistant attorney general terms it) on the ground that only the appellate court can extend the time for filing the record, and thus the trial court lacked authority to vacate its order striking the appeal.

Agreeing with this contention, a three judge panel of the Court of Special Appeals dismissed the cause, and we granted certiorari. We first address the propriety of the Court of Special Appeals’ action in dismissing the appeal to that court. As an initial matter, we believe any contention that the appeal was correctly dismissed because the intermediate appellate court properly denied the earlier motion to extend the time for filing the record, when the delay was caused solely by the inability of the court stenographer to transcribe the proceedings, is foreclosed by our opinion in Uhler v. Real Properties, Inc., 289 Md. 7 , 421 A.2d 966 (1980), and we do not understand the State to argue to the contrary. 1 Rather, ¹⁵⁹ the crux of the State’s assertion of the correctness of the dismissal by the intermediate court is that the Criminal Court of Baltimore possessed authority to strike the appeal under Rule 1013, but upon doing so, lost all jurisdiction to reconsider the matter. Consequently, under this view, since no appeal was noted from the trial court’s original dismissal order, and since the criminal court was not authorized to vacate that order, the Court of Special Appeals was correct in striking the appeal which was ostensibly revitalized when the trial court vacated its dismissal order.

In making this argument, the State necessarily contends that the trial court possesses no revisory power over its appeal nullification order, and to this end asserts that both section 6-408 of the Courts Article (1974, 1980 Repl. Vol.) and Rule 625, which authorize certain revisory actions, apply only in civil proceedings.* 2 The State appears to be correct as to Rule 625, see Rule 1 a 1 (scope of rules). As for section 6-408 3 , it would seem that the critical inquiry is the scope to be given the terms "judgment” and "court” as used in this provision, words which are not defined in the statute. A facial examination of the enactment reveals nothing in this remedial legislation, or its context in the Court’s Article, that necessarily dictates the narrow application the State advances.

In any event, we need not resolve the question of the applicability of this statute to criminal causes, for what the State has overlooked is that "[i]n Maryland all judgments are under ¹⁶⁰ the control of the court during the term in which they are entered, and during that time the court has inherent power to strike out or modify judgments in both civil and criminal cases.” Madison v. State, 205 Md. 425, 431 , 109 A.2d 96, 99 (1954). In the absence of a statute or rule either modifying or rescinding this power, such authority survives. See Owen v. Freeman, 279 Md. 241, 245 , 367 A.2d 1245, 1247-48 (1977); Scott v. State, 223 Md. 376, 381 , 164 A.2d 716, 719 (1960), and numerous citations therein. See also J. Poe, Pleading and Practice § 388 (5th ed. by H. Tiffany 1925).

So, assuming the State is correct in its assertion that no rule or statute exists authorizing or otherwise regulating the vacation of the dismissal order, the Criminal Court of Baltimore possessed inherent authority to strike its judgment dismissing the appeal at anytime during the term of court in which that order was rendered. By local rule, the term of the court with which we are here concerned was specified to commence on the second Monday in September (September 8, 1980) and run until the second Monday of the following January so that the intervening revisory order of September 29 was entered prior to the expiration of the existing court term. See Rule 21 of the Rules of the Supreme Bench of Baltimore City. 4 This being true, the State is incorrect in its assertion that the Criminal Court of Baltimore lacked authority to strike its order of dismissal, and in light of our holding in Uhler , there exists no basis for the Court of Special Appeals’ dismissal of the petitioners’ appeal in this case. Before moving to explain why reversal of these convictions for defective charges is obligatory, we pause to deny the State’s motion to dismiss consideration of this particular issue, and explain our reasons.

The petitioners argue that the trial court erred in denying their pretrial motion to dismiss the charging documents which was grounded, in part, on the contention that the instruments "failed to state all the essential elements of the offense” of which they were ¹⁶¹ purportedly accused, and thus were fatally defective. The State counters in its motion to dismiss filed in this Court that the failure to advance this contention in the petition for certiorari forecloses examination of the issue here. While "ordinarily”, based on Rule 813 a, this motion would be granted, under the unusual circumstances presented here, we deem it proper to exercise the discretion which that rule provides and consider the issue. 5 Turning now to the substantive issue raised by petitioners which we address, it is clear that the pretrial motion to dismiss the charges should have been granted by the trial court because the charging documents were defective for failure to properly and adequately charge the two defendants here. The provision of the code for which appellants ostensibly stand convicted provides: Any person who knowingly sends or causes to be sent, or brings or causes to be brought, into this State for sale or distribution, or in this State prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene matter is guilty of a misdemeanor. [Code (1957, 1976 Repl.

Vol., 1980 Cum. Supp.), Art. 27, § 418 6 ], ¹⁶² Each of the appellants here was charged with "unlawfully [selling] a magazine entitled 'Swedish Erotica #22’ which was reviewed by Judge Ciotola and found to be obscene in violation of... section 418.” As we view these charging documents, they are deficient, particularly in this case, in two respects: (i) they fail to allege directly that the magazine was obscene; and (ii) there is a failure to allege the "knowing” element of the crime purportedly charged. In discussing the deficiencies of the accusations, we think it clear the assertion that Judge Ciotola reviewed the magazine and found it to be obscene is not a direct allegation that this material is in fact obscene. We have searched our criminal statutes in vain to find a provision that makes unlawful the selling of a magazine determined to be obscene by Judge Ciotola, or, for that matter, any other judge of this State.

Moreover, it cannot be disputed that the charging document fails to expressly accuse the defendants with distributing obscene matter knowingly, which awareness, as used in this provision, is defined in the preceding section 417(4) to be "knowledge of the character and content of the subject matter.” We think it quite apparent, and the attorney general would seem not to dispute, that both this described state of mind and the requirement that the material be obscene are constituent components of this offense, ones without which a conviction could not be sustained, and thus essential elements of the criminal conduct proscribed by section 418. See Jenkins v. State, 215 Md. 70, 74-77 , 137 A.2d 115, 117-18 (1957). What the State does contend, however, is that the "practical needs which an indictment is intended to supply” are served by these charges as written, and that "rigid formalism in the construction of indictments ... [would be] 'a blemish and inconvenience in the law, and the ¹⁶³ administration thereof, [allowing] more offenders [to escape] by the over easy ear given to exceptions in indictments, than by their own innocence.’ ” (quoting 2 M. Hale, The History of the Pleas of the Crown 193 (1st American ed. 1847)). Our analysis begins by examining the role the charging document plays in our justice system. 7 Article 21 of the Maryland Declaration of Rights ensures "[t]hat in all criminal prosecutions, every man hath a right to be informed of the accusation against him; to have a copy of the Indictment, or charge, in due time (if required) to prepare for his defence.” The purposes served by these organic requirements concerning the criminal charge are several: (i) to put the accused on notice of what he is called upon to defend by characterizing and describing the crime and conduct; (ii) to protect the accused from a future prosecution for the same offense; (iii) to enable the defendant to prepare for his trial; (iv) to provide a basis for the court to consider the legal sufficiency of the charging document; and (v) to inform the court of the specific crime charged so that, if required, sentence may be pronounced in accordance with the right of the case.

See State v. Canova, 278 Md. 483, 498-99 , 365 A.2d 988, 997 (1976); Lank v. State, 219 Md. 433, 436 , 149 A.2d 367, 368 (1959). See also Russell v. United States, 369 U.S. 749, 763-69 , 82 S. Ct. 1038 , 8 L.Ed.2d 240 (1962); United States v. Cruikshank, 92 U.S. 542, 558 , 23 L.Ed. 588 (1876). We have recognized several times in the past that, in order to place an accused on adequate notice, two different types of information ought to be provided by the charging document. First, it is essential that it characterize the crime, and second, it should furnish the defendant such a description of the particular act alleged to have been committed as to inform him of the specific conduct with which he is charged.

See State v. Canova, supra, 278 Md. at 498-99 , 365 A.2d at 997 ; State v. Lassotovich, 162 Md. 147, 156 , 159 A. 362, 366 (1932); Bosco v. State, 157 Md. 407, 409-10 , 146 A. 238 , ¹⁶⁴ 238-39 (1929); Armacost v. State, 133 Md. 289, 293-94 , 105 A. 147, 148-49 (1918). As to the former of these dual requisites, where a statutory offense is alleged, it has generally been held in Maryland that, at least where the terms of the statute include the elements of the criminal conduct, the crime may be sufficiently characterized in the words of the statute. State v. Canova, supra; Bosco v. State, supra; State v. Lassotovich, supra. Moreover, we have acknowledged the efficacy of certain statutory short form indictments "provided the simplified form contains the essential elements of the crime it purports to charge.” Pearlman v. State, 232 Md. 251, 257-58 , 192 A.2d 767, 771 (1963), cert. denied, 376 U.S. 943 (1964) (and cases cited therein).

As stated in Neusbaum v. State, 156 Md. 149, 156 , 143 A. 872, 875 (1928), "while [the legislature] may simplify the form of an indictment or information, [it] cannot dispense with the necessity of placing therein a distinct presentation of the offense containing allegations of all its essential elements.” Likewise, in reference to the informative aspect of a charging document, failure of the accusation to contain information sufficient to advise the accused of the particular conduct alleged to have been committed renders the allegation subject to attack, and this requirement exists quite independent of the necessity to include all the essential elements of the crime. State v. Canova, supra, 278 Md. at 498-99 , 365 A.2d at 997-98 ; State v. Lassotovich, supra, 162 Md. at 156 , 159 A. at 366 . The petitioners here focus on the failure of the charge to allege