Howard v. State

Orth, C. J., delivered the opinion of the Court. Laura Agnus Howard 1 , 900 Neal Drive, Rockville, Maryland, was arrested on 24 March 1974. Officer William F. Green of the Montgomery County Police Department promptly executed a statement of charges, No. 195999, signed by a judicial officer as returned on the day of the arrest. 2 The charging document gave 24 March 1974 as the offense date, the time as 12:10 A.M. and the location as Mrs. Howard’s address. It alleged that she “did unlawfully violate Art. 27, Sect. 121 of the State of Md. to wit did make a disturbance of the Public Peace by wilfully disturbing the public peace by making loud and unseemly noises, profanity, swear & curse, against the peace government and dignity of the state.” 3 She was released upon posting an unsecured personal bond in the amount of $500.

Richard Alden Howard, Sr., the husband of Laura Agnus Howard, was also arrested on 24 March 1974. Four statements of charges emanated from his arrest. Three of them, Nos. 198408, 198404, and 195996, were executed by Sergeant Jack W. Hall and the other one, No. 195998, was executed by Corporal J. E. Eekenrode, both members of the Montgomery County Police Department. All four charging documents were signed by a judicial officer as returned on 24 March 1974, and all pertained to arrest no. 37376 and report no.

RD412510. In the statement executed by Eekenrode the time of the offense was given as 12:10 A.M. ⁷⁸ and the place as Lynn Court and Neal Drive. It alleged that Mr. Howard “did unlawfully commit the crime of Disturbance of the peace (Public) art. 27, Sec. 121 of the annotated Code of Maryland by willfully disturbing the public peace by making loud and unseemly noises, profanity, swear and curse against the peace, government, and dignity of the State.” 4 Statement of Charges no. 195996 executed by Hall alleged that Mr. Howard “did unlawfully commit the crime of Disturbance of the Public Peace Art. 27 section 121 Annotated Code of Maryland by willfully disturbing the public peace by making loud and unseemly noises, profanity curse and swear and use obscene language against the peace, government and dignity of the state.” 5 Statement of Charges no. 198403 executed by Hall alleged that Mr. Howard “did unlawfully make an assault upon Jack W. Hall and did then and there beat, bruise and ill treat the said Jack W. Hall, against the peace, government, and dignity of the state. Commonlaw of the state of Maryland against the peace, government, and dignity of the state.” 6 Statement of Charges no. 198404 executed by Hall alleged that Mr. Howard “did unlawfully hinder and prevent Jack W. Hall, a public police officer in the lawful execution of his duty, knowing him to be such officer Common laws of the state of Md. against the peace, government, and dignity of the state.” 7 Mr. Howard was released upon posting a “personal” bond in the amount of $500. ⁷⁹ Although on each Statement of Charges the judicial officer set the trial date as 16 May 1974, it seems that the cases came for trial as to both accused on 24 September 1974. 8 Mr. Howard and Mrs. Howard demanded a jury trial, Courts Art. § 4-302 (d) (1), and the presiding District Court judge ordered that the “original papers” be transferred to the Circuit Court for Montgomery County.

Bond was continued as to each accused. The five Statements of Charges were filed in the Circuit Court for Montgomery County and docketed on 30 September 1974. 9 According to the docket entries in each case under date of 1 November 1974, a motion by Mr. and Mrs. Howard to consolidate the cases was granted. 10 It appears from the docket entries that at a preliminary inquiry hearing on 1 November Mr. Howard and Mrs. Howard stood “mute on plea” and demanded a jury trial. The court entered a plea of not guilty. Bond was continued as to each accused.

On 24 January 1975 the State filed a “Motion for Appropriate Relief.” 11 The relief sought was that (1) the case in which Mrs. Howard was charged be severed from the four cases in which Mr. Howard was charged and remanded to the District Court for Montgomery County for trial, and that (2) with respect to the four cases in which Mr. Howard was charged, Criminal 15234 and Criminal 15235, each alleging a disturbance of the peace in violation of Code, art. 27, § 121, be severed and ⁸⁰ remanded to the District Court for Montgomery County for trial. Mr. and Mrs. Howard answered, opposing the motion. The State requested a hearing and the matter was heard on argument of counsel on 12 March 1975. The court issued an order dated 7 May 1975 and filed 8 May 1975: “ORDERED that Criminal Numbers 15234 and 15235 charging Richard A. Howard, Jr. with disturbing the peace on two different occasions under Article 27, Section 121, be and they are hereby severed from Criminal Numbers 15232 and 15233 and 15230 and remanded for disposition to the District Court for Montgomery County; and it is. further ORDERED that Criminal Number 15230 charging Laura A. Howard with disturbing the peace under Article 27, Section 121, is hereby severed from Criminal Numbers 15232 and 15233 and remanded to the District Court of Montgomery County for disposition.” In each case against them, Mr. and Mrs. Howard, on 5 June 1975, filed a request with the Clerk of the trial court that he “enter an appeal to the Court of Special Appeals of Maryland .. . from the opinion, order and judgment of the Circuit Court for Montgomery County ... of May 7,1975.” 12 I The State included a motion to dismiss the appeal in its brief as authorized by Maryland Rule 1036, § d.

The argument in support of the motion was that the order appealed from was a proper exercise of the lower court’s ⁸¹ discretion granted by Rule 735. 13 Neal v. State, 272 Md. 323 (1974) is cited as indicating that a “rightful exercise” of the court’s discretion is not immediately appealable. Mr. and Mrs. Howard oppose the motion in their reply brief. Rule 1036 § d. They claim that the order of 7 May 1975 was not merely an exercise of judicial discretion resulting in a severance of offenses and defendants authorized by Rule 735.

They assert that the order finally terminated the proceedings in the Circuit Court for Montgomery County as to three cases, criminal 15230 against Mrs. Howard and criminals 15234 and 15235 against Mr. Howard, and that it finally adjudicated both their right to a jury trial in those cases and the jurisdiction of the Circuit Court for Montgomery County to try them. We agree that it was a final judgment going to the jurisdiction of the court. The motion to dismiss the appeal is denied. See State v. McCray, 267 Md. 111, 126 (1972).

II Statement of Charges no. 195999 (Criminal 15230) as to Mrs. Howard and Statements of Charges no. 195998 (Criminal 15235) and no. 195996 (Criminal 15234) as to Mr. Howard alleged a commission of the crime proscribed by Code, art. 27, § 121. 14 The offense created by the statute is a misdemeanor. Any person convicted thereof shall “be sentenced to a fine of not less than one dollar and not more than one hundred dollars or shall be subject to ⁸² imprisonment for not more than thirty days, or shall be subject to both such fine and imprisonment, in the discretion of the court and shall pay costs of the prosecution.” Statement of Charges no. 198403 (Criminal 15232) alleged that Mr. Howard committed the crime of assault and battery, and Statement of Charges no. 198404 (Criminal 15233) alleged that he committed the crime of hindering a police officer in the execution of the officer’s duty. These crimes are common law misdemeanors without statutory designation of punishment. Thus, punishment is within the discretion of the trial court with the limitation that it be not cruel or unusual.

Roddy v. Finnegan, 43 Md. 490, 500-506 (1876); Wilkins v. State, 5 Md. App. 8, 22 (1968); Coleman v. State, 4 Md. App. 386, 390-391 (1968), cert. den., 252 Md. 730 (1969); Perkins on Criminal Law (2d ed.) 494-498; 3 Wharton’s Criminal Law (Anderson), § 1283. See Matter of Nawrocki, 15 Md. App. 252, 263 (1972), cert. den., 266 Md. 741 (1972). The criminal and civil jurisdiction of the District Court is bestowed by statute. Its criminal jurisdiction is designated by Courts Art. §§ 4-301 through 4-303, which specify the criminal cases in which it has exclusive original jurisdiction, concurrent jurisdiction and no jurisdiction.

A. Exclusive Original Jurisdiction Cases, § 4-301 The District Court has exclusive original jurisdiction in cases in which the charge is: 1) a violation of the vehicle laws or the State Boat Act; 15 2) the commission of a common law or statutory misdemeanor; 16 3) a violation of certain sections of Code, art. 27, whether a felony or misdemeanor, if the value ⁸³ of money or the thing taken, stolen, received, converted, or shoplifted does not exceed $500; 17 4) if not a felony, a) a violation of a county, municipal, or other ordinance; b) a criminal violation of a state, county, or municipal rule or regulation; c) doing or omitting to do any act made punishable by a fine, imprisonment, or other penalty as provided by a particular law, ordinance, rule, or regulation defining the violation. 18 B. Concurrent Jurisdiction Cases, § 4-302 (c) The jurisdiction of the District Court is concurrent with that of the circuit court in a criminal case in which the penalty may be confinement for three years or more or a fine of $2,500 or more. 19 C. No Jurisdiction Cases, § 4-302 (a) and (b) The District Court does not have jurisdiction to try a case: D charging the commission of a felony, except those specified violations of art. 27, see A 3) above, which are felonies; 2) in which a juvenile court has exclusive original jurisdiction, except as provided by § 4-303. 20 ⁸⁴ Thus, the case against Mrs. Howard and the two cases against Mr. Howard, charging violations of art. 27, § 121, disturbing the peace, were within the exclusive original jurisdiction of the District Court because the offense charged was a statutory misdemeanor as to which the maximum penalty authorized for confinement was less than three years. 21 As for the two remaining cases against Mr. Howard, charging assault and battery, and obstructing a police officer, however, the jurisdiction of the District Court, arising because each offense was a common law misdemeanor, was concurrent with the jurisdiction of the circuit court inasmuch as to each offense the penalty may be confinement for three years or more. The District Court may be deprived of its jurisdiction of a criminal case, be it exclusive original or concurrent with that of the Circuit Court, by the proper demand of a defendant for a jury trial. 22 The demand is proper when the defendant is entitled to a jury trial and claims it at any time prior to trial in the District Court. Courts Art. § 4-302 (d) (1). He is entitled to it “if theJpenalty for the offense with which he is charged permits imprisonment for a period in excess of three months;...” Courts Art. § 4-302 (d) (2).

Thus, considering the cases separately, Mr. Howard and Mrs. Howard were not entitled to a jury trial in the cases charging a violation of art. 27, § 121, disturbing the peace, and could not deprive the District Court of its exclusive original jurisdiction over those cases by demanding a jury trial. Mr. Howard, however, could deprive the District Court of its jurisdiction to try the two cases in which he was charged with assault and obstructing a police officer by demanding the jury trial to which he was entitled because the charges permitted imprisonment for a period in excess of ⁸⁵ three months. As he made timely demand for a jury trial in those two cases, the District Court was deprived of its jurisdiction over them which it had concurrently with the circuit court, and jurisdiction as to them vested in the circuit court. The question is: Did the demand for a jury trial by Mr. Howard as to the offenses of assault and obstructing an officer not only deprive the District Court of its jurisdiction over those two offenses and bestow exclusive original jurisdiction over them on the circuit court, but also deprive the District Court of its exclusive original jurisdiction over the disturbing the peace offenses against Mr. Howard, or against both Mr. and Mrs. Howard, and bestow exclusive original jurisdiction over them on the circuit court?

Courts Art. § 4-302 (e) declares: “Except as provided in Subtitle 5, the District Court does not have jurisdiction of an offense or offenses otherwise within the District Court’s jurisdiction if a person is charged with an offense or offenses arising from the same circumstances but not within the District Court’s jurisdiction. In this case, the circuit court for the county has exclusive original jurisdiction over all the offenses.” 23 This appeal requires a construction of § 4-302 (e) and specifically of the phrase “not within the District Court’s jurisdiction.” On 17 June 1976 the Court of Appeals filed its opinion in Thompson v. State, 278 Md. 41 (1975). Thompson was charged with three violations of the motor vehicle laws arising out of the same circumstances. Only one of the offenses carried such a maximum penalty as would entitle him to demand a jury trial prior to trial in the District Court.

He demanded a jury trial and the entire case was transferred to the Criminal Court of Baltimore for trial. ⁸⁶ When the case came on for trial, the State entered a nolle prosequi with respect to the offense which met the penalty requirements for entitlement to a jury trial under Courts Art. § 4-302 (d) (2). Thompson demanded a jury trial on the two remaining offenses or, in the alternative, that they be remanded to the District Court