In Re Jeannette L.

GILBERT, Chief Judge. These two appellants request, among other things, that the judgments against them be reversed because they received that for which they asked, a jury trial. Usually asking for and receiving a trial by jury is not a ground for appeal. Yet, when the request is made of a juvenile court, a forum where jury trials are not held, does the grant of the request constitute reversible error?

Other issues raised by one or both of the appellants “run the gauntlet” from an attack on the constitutionality of Md. Educ. Code Ann. § 7-301(e)(2) to questioning the sufficiency of the evidence. THE FACTS The appellants, Jeannette L. (Mrs. L.) and Shirley P.

(Mrs. P.) have several things in common: Each is the mother of school-age children; each was charged in the juvenile court with violating the State’s Education Article in that the children did not attend school regularly; each demanded and received a jury trial in the juvenile court of Prince George’s County; each was convicted by the jury and ultimately received suspended fines and sentences; each was placed on probation, and each appealed. The record reflects that at the time of trial Mrs. L.’s daughters were twelve and ten years old, respectively. The older daughter was absent from school 86.5 days between September 11, 1985, and April 25, 1986. The younger daughter was absent from school 70 days between October 8, 1985, and April 28, 1986.

Mrs. L. did not testify. Her older daughter told the jury that the reasons she stayed home from school were her grandmother’s death, ⁷⁴ her great-aunt’s hospitalization, her own hospitalization because of mononucleosis and her subsequent recuperation, rumors being spread at school about the reason for her hospitalization, and a rash and welts on her arm. The younger daughter related to the jurors that she missed school because she helped her terminally ill grandfather, was hospitalized for a hip infection, had various sicknesses and colds, and could not get to school when the bus did not stop for her. Mrs. P. also has two daughters.

The daughters are eleven months apart in age. Nevertheless, on the trial date they were both fifteen years old. Mrs. P. testified that the reasons for the daughters’ nonattendance at school were her state of health, lack of cooperation from her children, and her inability to control their conduct. She also said that her daughters were often sick, citing such ailments as a sore mouth after having a cavity filled, a cut finger, and earaches.

She permitted the children to stay home since she had no transportation and could not pick them up from school if they wanted to come home at midday. Mrs. P.’s older daughter was absent from school 71 days between September 1985 and February 22, 1986. Her younger daughter, during the same time frame, was absent 76 days. The petitions that were filed in the juvenile court 1 against the two women alleged that each of them did: “a. induce or attempt to induce ... a child subject to the compulsory attendance law of the State as defined in Section 7-101 [sic] of the Education Article of the Anno ⁷⁵ tated Code of Maryland, to be unlawfully absent from school on [a stated number of days]. [2] b. employ or harbor ... a child subject to the compulsory attendance law of the State as defined in Section 7-301 of the Education Article of the Annotated Code of Maryland, thereby causing the child to be unlawfully absent from school on [a stated number of days]. c.

From [a given date to another given date] have control over ..., a child who was six (6) years or older and under sixteen (16) years of age and who is subject to the compulsory attendance laws of the State as defined in Section 7-301 of the Education Article of the Annotated Code of Maryland, and failed to see that the child attended school or received instruction____” Mrs. L. and Mrs. P. were tried separately. Each moved for a jury trial. Over the State’s objection, the trial judge granted the motion and empaneled a jury. Mrs. P. was found by the jury to be guilty of count c, “hav[ing] control over ... [but] failpng] to see that the child attended school or received instruction.” She was sentenced to pay a fine of $500 and serve fifty days in the County Detention Center.

The fine and jail term were suspended, and Mrs. P. was placed on supervised probation for two years. 3 The jury determined that Mrs. L. was guilty of counts b and c. She was fined $750 for each count and sentenced to concurrent terms of seventy-five days in the County Detention Center. The jail term and fine were suspended, and she was placed on probation for five years. 4 ⁷⁶ Immediately prior to the imposition of sentence, defense counsel informed the court that the jury trial demands made by Mrs. L. and Mrs. P. should not have been granted. Counsel asserted that when he asked for a jury trial he expected the case to be transferred to the district court, which had concurrent jurisdiction over the subject matter. 5 The trial judge observed, as do we, that there currently are no jury trials conducted in the district court.

The judge declined to strike the verdict and suggested that appeals be filed. THE ISSUES In this Court Mrs. L. has fired a scatter gun at the proceeding in and judgment of the juvenile court. She puts eight questions to us. Mrs. P. has advanced five issues.

Some of the matters posed by the two appellants, not surprisingly, are concerned with the same facts and law. We shall, therefore, divide the issues into three categories, i.e., joint, Mrs. L.’s, and Mrs. P.’s. JOINT ISSUES I. Are the judgments of the circuit court, sitting as a juvenile court, invalid because the appellants were tried by a jury? The appellants aver that the trial court lacked the authority to permit a jury trial.

To support their position, the appellants point to Md.Rule 910(a) and to the opinion in the case of In re: Johnson, 254 Md. 517 , 255 A.2d 419 (1969). Maryland Rule 910(a) provides in clear and unambiguous language that hearings conducted by a juvenile court “shall be ... without a jury.” (Emphasis supplied.) ⁷⁷ The Court of Appeals, speaking through Judge Singley, said in Johnson, 254 Md. at 531 , 255 A.2d at 426 : “[T]his Court long has recognized that in Maryland ‘juvenile courts are courts of equity for juvenile causes’ having ‘the power and full right to decide without a jury every question of law and fact which may arise out of the subject matter before it and over which it has jurisdiction....’” The Court further commented that if jury trials are to be part of the juvenile court system the Legislature will have to so provide. Johnson was decided more than seventeen years ago, and thus far the General Assembly has not required trial by jury in cases over which the juvenile court exercises jurisdiction. See Courts Art., §§ 3-801 to 3-835.

Two years after Johnson the Supreme Court decided McKeiver v. Pennsylvania, 403 U.S. 528 , 91 S.Ct. 1976 , 29 L.Ed.2d 647 (1971). Justice Blackmun, writing for the plurality, remarked that “trial by jury in the juvenile court’s adjudicative range is not a constitutional requirement.” 403 U.S. at 545 , 91 S.Ct. at 1986 . The plurality of the high court reasoned that a trial by jury would “remake the juvenile proceeding into a fully adversary process and ... put an effective end to what has been ... an ... informal protective process.” 403 U.S. at 545 , 91 S.Ct. at 1986 . Justice Blackmun penned: “Since [In re] Gault [ 387 U.S. 1 , 87 S.Ct. 1428 , 18 L.Ed.2d 527 (1967) and since Duncan v. Louisiana, 391 U.S. 145 , 88 S.Ct. 1444 , 20 L.Ed.2d 491 (1968) ] the great majority of States, in addition to Pennsylvania and North Carolina, that have faced the issue have concluded that the considerations that led to the result in those two cases do not compel trial by jury in the juvenile court.

In re Fucini, 44 Ill.2d 305 , 255 N.E.2d 380 (1970); Bible v. State, [253] Ind. [373], 254 N.E.2d 319 (1970); Dryden v. Commonwealth, 435 S.W.2d 457 (Ky.1968); In re Johnson, 254 Md. 517 , 255 A.2d 419 (1969); Hopkins v. Youth Court, 227 So.2d 282 (Miss.1969); In re J.W., 106 N.J. ⁷⁸ Super. 129, 254 A.2d 334 (1969); In re D., 27 N.Y.2d 90 , [ 313 N.Y.S.2d 704 ], 261 N.E.2d 627 (1970); In re Agler, 19 Ohio St.2d 70 , 249 N.E.2d 808 (1969); State v. Turner, 253 Ore. 235 , 453 P.2d 910 (1969). See In re Estes v. Hopp, 73 Wash. 2d 263 , 438 P.2d 205 (1968); McMullen v. Geiger, 184 Neb. 581 , 169 N.W.2d 431 (1969). To the contrary are Peyton v. Nord, 78 N.M. 717 , 437 P.2d 716 (1968), and, semble, Nieves v. United States, 280 F.Supp. 994 (SDNY 1968).” 403 U.S. at 549 , 91 S.Ct. at 1988 . A reading of the federal and state cases makes it unmistakable that a juvenile offender is not entitled to a jury trial in the juvenile court.

Prior to 1984, the only offense for which an adult could be charged in the juvenile court was that of contributing to a child’s delinquency, a need for supervision, or a need for assistance. 6 Courts Art., § 3-831. Whenever an adult is charged under Courts Art., § 3-831, he or she is entitled to move for a waiver of jurisdiction and, as a matter of right, have the case sent to the appropriate court. Courts Art., § 3 — 804(c); Md.Rule 913 f. 7 The stat ⁷⁹ ute and rule were designed to afford jury trials to adults. That right is, however, limited to offenses arising out of alleged violations of Courts Art., § 3-831.

Until 1984 Md.Laws Ch. 664, no problem existed with respect to adults and their right to demand a waiver to a criminal court where they could, if they chose, have a trial by jury. Because the penalty prescribed for violation of Courts Art., § 3-831 is substantial, a trial by jury, is required, if demanded. Courts Art., § 3-804(c) and Rule 913 f are but recognition of that right. See generally, Huebner v. District Court, 62 Md.App. 462 , 490 A.2d 266 (1985), a ff'd, State v. Huebner, 305 Md. 601 , 505 A.2d 1331 (1986) ; see also Fisher v. State, 305 Md. 357 , 504 A.2d 626 (1986); Kawamura v. State, 299 Md. 276 , 473 A.2d 438 (1984).

No other type of what is normally considered a “criminal offense” was punishable by the juvenile court except possibly criminal contempt. See Thomas v. State, 21 Md.App. 572 , 320 A.2d 538 (1974), cert. denied, 272 Md. 749 (1974). The Legislature in 1984 Md.Laws Ch. 664 added to Courts Art., § 3-804, paragraph (d), which provides: “The jurisdiction of the court is concurrent with that of the District Court in any criminal case arising under the compulsory public school attendance laws of this State.” ⁸⁰ That paragraph confers upon a prosecutor the absolute discretion to determine whether an adult who is accused of violating the compulsory public school attendance laws is to be charged in the district court or juvenile court. Neither appellant has attacked the constitutionality of Courts Art., § 3-804(d), and we express no opinion as to its validity.

But see 72 Op.Att’y Gen. No. 87-006 (February 10, 1987). Assuming arguendo the constitutionality of Courts Art., § 3-804(d), it becomes readily apparent that the juvenile court had subject matter jurisdiction over the offenses charged because the Legislature so provided. 1984 Md. Laws Ch. 664. The question then before us becomes not one of the jurisdiction of the juvenile court but rather its authority procedurally to conduct a jury trial.

As interesting as that question may be, we do not decide it because the appellants have by their acts waived their right to raise the issue. Lohss v. State, 272 Md. 113 , 321 A.2d 534 (1974). In Lohss , a circuit court had ruled that a search was illegal. Consequently, the State was prevented from introducing evidence derived from the search.

Lohss then moved to dismiss the charges, and the State agreed, declaring it had “no objection” to that dismissal. The State then moved to dismiss a co-defendant on the ground that, absent the “suppressed evidence,” it was unable to proceed. The co-defendant, understandably, interposed no objection to the State’s motion. On appeal by the State this Court reversed.

State v. Lohss, 19 Md.App. 489 , 313 A.2d 87 (1973). The Court of Appeals disagreed with our decision, reversed it, and reinstated the dismissal of the indictments. The Court said: “[T]he right of appeal may be lost by waiver or estoppel when there is acquiescence or recognition in the validity of the decision from which the appeal is taken or by otherwise taking a position inconsistent with the right of appeal, see Rocks v. Brosius, supra, 241 Md. [612] at 630 ⁸¹ [ 217 A.2d 531 (1966) ]. Nor can one appeal from a judgment or order where the relief he prays for is granted.

Adm’r, Motor Veh. Adm. v. Vogt [ 267 Md. 660 , 299 A.2d 1 (1973) ], supra; Wright v. Baker, 197 Md. 315, 318 , 79 A.2d 159 (1951); Mugford v. City of Baltimore, 185 Md. 266, 269 , 44 A.2d 745 , 162 A.L.R. 1101 (1945).” 272 Md. at 118 , 321 A.2d 534 . Mrs. L. and Mrs. P. demanded and received a jury trial. By so doing they acquiesced in and recognized the validity of that form of trial.

It is with ill grace that they now complain they should not have gotten that for which they asked. Lohss is absolutely dispositive of the matter. Any error in granting a jury trial was waived by the appellants’ being the movants in that seemingly procedural aberration.

II

Is Md.Educ.Code Ann. § 7-301(e)(2) constitutional? The Maryland compulsory public school attendance statute, Educ. Art., § 7-301(c), provides: “Each person who has under his control a child who is 6 years old or older and under 16 shall see that the child attends school or receives instruction as required by this section.” The penalties for noncompliance with the statute are stated in Educ. Art., § 7-301(e): “(1) Any person who induces or attempts to induce a child to absent himself unlawfully from school or employs or harbors any child who is absent unlawfully from school while school is in session is guilty of a misdemeanor and on conviction is subject to a fine not to exceed $500 or imprisonment not to exceed 30 days, or both.

(2) Any person who has control over a child who is 6 years old or older and under 16 who fails to see that the child attends school or receives instruction under this section is guilty of a misdemeanor and on conviction is ⁸² subject to a fine not to exceed $50 per day of unlawful absence or imprisonment not to exceed 10 days, or both. (3) As to any sentence imposed under this section, the court may suspend the fine or the prison sentence and establish terms and conditions which would promote the child’s attendance. The suspension authority provided for in this subsection is in addition to and not in limitation of the suspension authority under Article 27, Section 641A of the Code.” The constitutional challenge is bottomed on the alleged vagueness of the penalty provisions of § 7-301(e)(2). Appellants assert that subsection (2) of § 7-301(e) fails to specify what persons are subject to its provisions.

The statute as written, the appellants aver, might be applied to any school bus driver who permits a child to alight from the bus before it arrives at the school itself. That argument places the proverbial cart before the well-known and shopworn horse. The Court of Appeals in Bowers v. State, 283 Md. 115, 122 , 389 A.2d 341, 346 (1978), through Judge Levine, made transpicuous that the constitutionality of a statute attacked on the ground of vagueness is “determined strictly on the basis of the statute’s application to the particular facts at hand.” (Citations omitted.) It is “immaterial that the statute is of questionable applicability in foreseeable marginal situations, if a contested provision clearly applies to the conduct of the defendant in a specific case.” Id., citing United States v. Petrillo, 332 U.S. 1, 7 , 67 S.Ct. 1538, 1542 , 91 L.Ed. 1877, 1883 (1947). See United States v. Powell, 423 U.S. 87, 92 , 96 S.Ct. 316, 320 , 46 L.Ed.2d 228, 234 (1975).

The trilogy of Bowers, Powell, and Petrillo makes clear that we must consider the vagueness issue only in respect to the appellants’ cases. The statute obviously applies to the appellants, inasmuch as they fit within the ambit of Educ. Art., § 7-301(a). Since the statute is manifestly applicable to the appellants, it is immaterial whether it applies to a school bus driver. ⁸³ The appellants further contend that the statute fails to indicate whether a single absence from school is sufficient to trigger the provisions of § 7-301(e)(2).

Moreover, they ask what constitutes attending school “regularly.” 8 Because in these two appeals it is apparent that the children of the appellants were absent from school for substantial periods of time, the appellants need not puzzle over whether the act applies to a single absence. Irrespective of how one reads the statute, the extensive unexcused absences of the appellants’ children are embraced within its scope. Bowers declares: “A statute is not vague when the meaning of the words in controversy can be fairly ascertained by reference to judicial determinations, the common law, dictionaries, treatises or even the words themselves, if they possess a common and generally accepted meaning.” 283 Md. at 125 , 389 A.2d 341 . If read out of context, Educ.

Art., § 7-301(e)(2) appears to permit prosecution of any parent who fails to see that his or her child attends school on any given day. When § 7-301(e)(2) is read together with § 7-301(a), however, it is perspicuous that