Dean v. State

Orth, J., delivered the opinion of the Court. LAWRENCE GENTRY DEAN was tried before a jury in the Circuit Court for Prince George’s County on charges arising from an incident on the campus of the University of Maryland on 14 May 1970. He was found ⁶⁵⁷ guilty of two offenses, the common law crime of forcible entry and a statutory crime proscribed by Code, Art. 27, § 577B. He was sentenced to 3 months on each conviction, the sentences to run concurrently.

He appealed. FORCIBLE ENTRY “A forcible entry * * * is an entry on real property peaceably in the possession of another, against his will, without authority of law, by actual force, or with such an array of force and apparent intent to employ it for the purpose of overcoming resistance that the occupant in yielding and permitting possession to be taken from him must be regarded as acting from a well-founded apprehension that his resistance would be perilous or unavailing.” 35 Am. Jur. 2d, § Í, p. 891. 1 See 2 Wharton, Criminal Law and Procedure (1957), §§ 867-877, pp. 734-740; Perkins, Criminal Lato (2d ed.), pp. 410-411; Hochheimer, Criminal Lain (2d ed.) §§ 327-329, pp. 360-362; 4 Blackstone, Commentaries, 148. Maryland has long recognized that proceedings in cases of forcible entry form a part of our criminal jurisprudence.

Isaac v. Clarke, 9 G. & J. 107, 114 (1837). The offense was included in our inheritance of the English common law and statutes. Art. 5, Declaration of Bights, Constitution of Maryland. See State v. Magliano, 7 Md. App. 286, 292-294 .

Blackstone, listing it in his Commentaries in “Book the Fourth — Of Public Wrongs” at 148 as an “offense against the public peace” described it as “committed by violently taking or keeping possession of lands and tenements, with menaces, force, and arms, and without authority of law.” He gave an apergu of its history: “This was formerly allowable to every person ⁶⁵⁸ disseised, or turned out of possession, unless his entry was taken away or barred by his own neglect, or other circumstances; which were explained more at large in the third volume of these Commentaries. But this being found very prejudicial to the public peace, it was thought necessary by several statutes to restrain all persons from the use of such violent methods, even of doing themselves justice; and much more if they have no justice in their claim. So that the entry now allowed by law is a peaceable one; that forbidden is such as is carried on and maintained with force, with violence, and unusual weapons.” Ibid. All forcible entries were punishable with imprisonment and ransom at the king’s will by 5 Rich.II, st.l, c 8, enacted at Westminster in 1381.

It provided that “none from thenceforth shall make an entry into any lands and tenements but in cases where entry is given by law; and in such cases not with strong hand nor with multitude of people, but only in peaceable and easy manner, and if any man from henceforth shall do to the contrary, and thereof be duly convicted, he shall be punished by imprisonment of his body.” 2 Kilty held the statute “applicable to the province” and “proper to be incorporated” on his finding. “This statute, and others on the same subject, which will hereafter be noticed, have always been practised under the province and in the state.” Report of English Stahites (1811), 222. See also Alexander’s British Statutes 184. 3 Manning v. Brown, 47 Md. 506 , 511 ⁶⁵⁹ recognized forcible entry as “an offense against the public peace.” After discussing the right of entry under the early common law prior to the statutes to restrain forcible entries, 4 it set out the declarations of Sta.5, Rich.II, ch.8. cf. Krauss v. State, 216 Md. 369, 372 ; Bouie v. Columbia, 378 U. S. 347 , 358 and note 6. See also Stephen’s Commentaries in the Law of England, vol.III, p.356 and vol.IV, p.342. The misdemeanor of forcible entry requires an actual entry upon land or tenements as contrasted with an attempt to enter.

It is the force with which the entry is made that distinguishes it from an ordinary trespass. 5 The force may be actual or there may be a show of force which has the effect of preventing resistance. It must be such as to create a reasonable apprehension that it must be yielded to or a breach of the peace will be committed. 2 Wharton’s Criminal Laiu (1957), § 869, p. 736. Hochheimer put it thusly: “[T]he violence may consist of actual force applied to the person, of breaking open a house, of an array of numbers, of anything tending to ⁶⁶⁰ cause apprehension of bodily hurt or breach of the peace in the event of resistance.” § 327 at 360. So “[a]n entry is forcible when effected or accompanied by such force or threats of personal violence, either actual or implied from the actions of the defendant, as are likely to intimidate the possessor of the land or his family and to deter them from defending their possession, or to provoke a breach of the peace.” 6 Wharton, supra, § 869, p. 736.

An entry by an open window, or by opening the door with a key or by mere trick or artifice is not deemed a forcible entry, id., § 870, p. 737. But the force employed need not put those in possession actually in fear. 35 Am. Jur. 2d § 58, pp. 929-930. It is sufficient at the common law that the entry be against a person in possession of the land and tenements, that is that he had actually entered on and peaceably occupied the premises. “[I]t is ⁶⁶¹ not necessary to show that his possession was held under title in any sense other than that of being peaceably held and enj oyed by him at the time the forcible act was done by the defendant.” 7 Ibid.

Thus “[t]he ownership or right to possession of the land is not in issue in a prosecution for forcible entry and detainer. The defendant can neither attack the victim’s title to the property nor attempt to establish his own.” Wharton, supra, § 874, p. 739. And it is not necessary that the possessor have been personally present on the premises at. the time of the forcible entry, if in actual exercise of authority and control over them. 35 Am. Jur. 2d § 58.

As to criminal agency, “a person who is present at the time of and cooperating with another in making a forcible entry is guilty of the offense, whether or not he actually comes on the land.” Id., § 59. 8 The Indictment Dean claims that the indictment failed to charge the offense of forcible entry. 9 Rule 712 a provides: “An indictment shall contain a plain, concise and definite statement of the essential facts constituting the specific offense with which the defendant is charged. It need not contain any other matter not necessary to such statement, * * *. An unnecessary allegation may be disregarded as surplusage * * Count 1 of the indictment here presented that Dean “did unlawfully and forcibly enter into and upon the Administration Building of the University of Maryland then and there in possession of the Board of Regents of the University of Maryland and did thereupon occupy the said premises with and by such array of force as did cause ⁶⁶² apprehension on the part of agents of the Board of Regents of the University of Maryland of breach of the peace in the event that said agents resist such forcible entry in violation of the common law of Maryland.” We said in Ward v. State, 9 Md. App. 583 , 587-588: “The rule which seems to be generally recognized draws a line of demarcation between an indictment or information which completely fails to state an offense and one which alleges all the elements of the offense intended to be charged and apprises the accused of the nature and cause of the accusation against him, even though it is defective in its allegations or is so inartfully drawn that it would be open to attack in the trial court. Putnam v. State, 234 Md. 537 ; Baker v. State, 6 Md. App. 148 .” We followed and applied the rule in Rosenberg v. State, 12 Md. App. 20, 24 .

We have no difficulty in determining that the count here challenged gave a plain, concise and definite statement of the essential facts constituting the common law offense of forcible entry as discussed supra. We find that count 1 properly charged forcible entry. 10 Dean also alleges that count 1 was lacking in specificity. We do not agree. It charged the offense and we do not think that it was fatally defective in failing to allege such other facts as would enable Dean to prepare his defense in the constitutional sense.

Seidman v. State, 230 Md. 305 . Dean complains that the indictment did not “state the hour of entry”, whether or not “the building was closed”, the “array of force used”, what precise acts he did “to cause apprehension on the part of the agents of the Board of Regents”, who the agents were, the source of their authority. Such of these points as may have been relevant and material were matters of ⁶⁶³ proof; they were not essential to the sufficiency of the indictment. The count as drawn served its purpose of apprising Dean of the crime charged within the contemplation of Art. 21 of the Declaration of Rights of the Maryland Constitution.

See Presley v. State, 6 Md. App. 419, 430 ; Lynch v. State, 2 Md. App. 546 ; Dortch and Garnett v. State, 1 Md. App. 173 . We hold that the lower court did not err in denying the motion to dismiss count 1 of the indictment. The Sufficiency of the Evidence There was evidence adduced from which the jury could properly find that about 8:00 p.m. on 14 May 1970 a group of persons gained entry to the Administration Building of the University of Maryland through the northwest entrance. The top of the door had been splintered and the door forced open.

A college policeman requested the 10 or 15 people who had entered to leave and they did so. He tried to secure the door but he could not close it against the force of those attempting to gain entrance. About 40 or 50 persons entered the lobby. Reinforcements called by the policeman arrived and in about 20 minutes the lobby had been cleared.

During that time, howrever, requests to leave were not immediately complied with. Persons milled around the lobby and several changed the lettering on the directory board to such slogans as “Power to the People”, “Free Food for Dining Room Whores”, and “Fuck Elkins”. There were judicial identifications of Dean as one of those in the building changing the lettering on the directory board and that he kept on doing so when requested to leave. He and a companion put the sign in the center of the lobby and asked a lieutenant of the campus police department if he were going to destroy it. 11 ⁶⁶⁴ Dean concedes that the evidence showed that he was “part of a group that entered the administration building.” But he argues that there was no proof he broke the doors to gain entry, or that he was the first to enter the building after it had been secured.

He further urges that the evidence did not establish that the entry was “of such nature that it engendered a fear or apprehension on the part of those in possession that they would suffer some bodily harm”, and points out that he did leave the building, not remaining after all the others had left. He did not dispute that the Administration Building was in the peaceable possession of the Board of Regents. We find that the evidence was sufficient in law to establish that the Administration Building of the University of Maryland was peaceably in the possession of the Board of Regents, that Dean entered thereon against the will of the possessors, without authority of law and by actual force. We point out that it w-as at least a rational inference that he was present at the time of entry and cooperating with others in making the forcible entry; this was enough to show his criminal agency.

And since actual force was used, it seems that the apprehension of bodily hurt or that the peace would be breached in event of resistance was not an essential element. In any event, it is only required that the show of force be such as is likely to intimidate the possessor, not that he was actually put in fear, or such as is likely to result in a breach of the peace. We believe that the jury could have properly concluded on the evidence before it that one of these was the likely result. We note that it was no defense to the crime of forcible entry that Dean may have had the right to enter the building under normal circumstances; it is no defense that a defendant had the legal title to and have the right of immediate possession of the real estate in question.

Perkins, supra, at 410. In the words of Perkins, ibid: “The social interest in the peace and quiet of the community requires that no peaceful possession of real estate should be disturbed by such violent means.” ⁶⁶⁵ We hold that the lower court did not err in denying the motion for judgment of acquittal as to the first count of the indictment. Williams v. State, 5 Md. App. 450 . CODE, ART. 27, § 577B Constitutionality Attacking his conviction of the statutory offense Dean asks us, as we were asked in Kirstel v. State, 13 Md. App. 482 , to declare § 577B unconstitutional.

He bases his request on two grounds: the statute is vague in violation of due process, and it is discriminatory in violation of equal protection. Dean is entitled to a determination of the constitutionality only of those provisions of the statute under which he was convicted. He was not affected by other provisions of the statute, whether or not they are constitutional, as the Act has a severability clause. Acts 1969, ch. 627, § 2.

We found in Kirstel that the statute has two aspects which we styled the “denial of access aspect” and the “criminal offenses aspect.” Dean, as was Kirstel, was convicted of a misdemeanor created under the second aspect, namely that he refused or failed to leave the building or grounds of a public educational institution' after being requested to do so by an authorized employee of the institution. We said in Kirstel that the employee must have standards to follow in making the request and we found that it was the legislative intent that the standards be that the person requested to leave had no lawful business to pursue at the institution or that he was acting in a manner disruptive or disturbing to the normal educational functions of the institution, the test being that it would so appear to a reasonable man. In considering whether the Act was unconstitutionally vague in Kirstel we applied the general rule that “all that is required is that the language ‘conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.’ ” United States v. Petrillo, 332 U. S. 1, 8 . We said: “We believe the provisions of the Act here ⁶⁶⁶ considered meet the test of the rule on vagueness.

Certainly the language of the Act that a person who refuses or fails to leave after being requested to do so is guilty of a misdemeanor conveys sufficiently definite warning as to what conduct is proscribed when measured by common understanding and practices. The act forbidden — not leaving after being requested — is precise, clearly expressed and delineated. No speculation is required as to the meaning of that provision; men of common intelligence need not necessarily guess at its meaning and differ as to its application. Nor do we find vague the