Callan v. State

⁴⁶¹ 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 ⁴⁶² 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 ⁴⁶³ 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 ⁴⁶⁴ 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 ⁴⁶⁵ 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