Kirsner v. State

Bailey, J., delivered the opinion of the court. There are eight appeals in this record. Each appeal is from a judgment of the Criminal Court of Baltimore City, entered on April 8, 1943, sentencing the defendant, Esther Kirsner, appellant in this court, to pay fines ranging from $250 to $1,500 in the several cases. The appellant was indicted for alleged violations of Ordinance ³ No. 578 of the Mayor and City Council of Baltimore, approved October 31, 1941 (hereinafter called the “Building Code”), and of Ordinance No. 384, approved March 6, 1941 (hereinafter called the “Health Ordinance”).

The cases were numbered consecutively from No. 5180 to No. 5187 in the Criminal Court and they will be referred to by their respective numbers in this opinion. Each case involves a separate property. The properties are located on Linden Avenue and Eutaw Place, in Baltimore City, and were existing dwellings at the time of the adoption of the said ordinances. The indictments in cases Nos. 5180, 5181, 5184 and 5185 contain two counts, the first count charging violations of the Building Code and the second count charging violations of the Health Ordinance.

Each indictment in the remaining cases contains a single count, in cases Nos. 5182, 5183 and 5187 charging violations of the Building Code and in case No. 5186 charging violations of the Health Ordinance. The appellant demurred to each indictment and to each count of the indictments containing two counts. The demurrers were overruled, whereupon she submitted under a plea of nolo contendere in each case. After the imposition of the sentences, identical motions were filed in all cases asking that the sentences be stricken out.

The first question for our determination is the sufficiency of the indictments. We will consider first the indictments and counts charging, violations of the Building Code. The first count of the indictment in case No. 5180, after the formal commencement, charges that Esther Kirsner and others, “on the twenty-third day of October, in the year of our Lord nineteen hundred and forty-two, at the City aforesaid, in violation of a certain Ordinance of the Mayor and City Council of Baltimore, theretofore duly enacted and ordained, to-wit, Paragraphs 4387,4391, 1400 and 2507 of Article Three of the Baltimore City Code of the year of our Lord nineteen hundred and twenty-seven, as repealed and reordained by Ordinance 578 of the Mayor and City Council of Baltimore, approved on the thirty-first day of October, in the year of our Lord ⁴ nineteen hundred and forty-one, being then and there the owners of a certain lot of ground, cellar, premise and possession, in said City, fronting on Linden Avenue, being number Eighteen Hundred and Twenty-two Linden Avenue, in said City, the said premises being occupied as a dwelling, did unlawfully fail to make the electrical equipment therein conform to the provisions of the Baltimore City Code, thus constituting an imminent menace to life or health of persons residing in said premises and did unlawfully fail to keep said dwelling and every part thereof in good repair and in a safe condition while in use; and did unlawfully do certain work and commence certain repairs on said premises without first having obtained a proper permit from the Buildings Engineer of Baltimore City; and did unlawfully fail to correct and remedy conditions on said premises which were unsafe and dangerous to the safety of persons residing therein; against the form of the Ordinance in such case made and provided and against the peace, government and dignity of the State.” The other counts under the Building Code are in the same general form, referring to violations of other Paragraphs of the Code, as to other properties on other days. In case No. 5181 the first count charges violations of Paragraphs 4345, 4346, 4383, 4387, 4391 and 2507 of the Building Code.

In case No. 5182 the paragraphs alleged to have been violated are 4385, 4387, 4391 and 2507. The indictment in case No. 5183 alleges violations of Paragraphs 4352, 5387, 4391, 1400 and 2507. The first count in case No. 5184 alleges violations of Paragraphs 4352, 4385, 4345, 4375, 4387, 4391, 9482, 1400 and 2507. In case No. 5185 the first count charges violations of Paragraphs 4350, 4365 and 4391.

The indictment in case No. 5187 refers by number to only Paragraph 4350, which pertains to exit requirements for dwellings, but then proceeds to charge not only a violation of this paragraph but also of Paragraph 4391, which provides that every dwelling and all parts thereof shall be kept in good repair and in a safe condition while in use. ⁵ The Building Code is contained in a printed volume of 1434 pages and consists of many chapters, divided into sections and paragraphs. By Paragraphs 1912 to 1919, inclusive, violations of its many provisions are divided into six separate classes, namely: safety, health, fire, administrative, technical and miscellaneous violations. The penalties for the various classes of violations are prescribed by Paragraphs 1922 to 1929, inclusive. The maximum fine for all classes is $100 but the minimum ranges from $5 for an administrative or miscellaneous violation to $50 for a safety violation.

The minimum fine for technical violations is $10 and for fire and health violations is $25. Of the violations charged in the first count of the indictment in case No. 5180, which we have quoted at length herein, the violation of Paragraph 4387 is a technical violation, of Paragraph 4391, a miscellaneous violation, of Paragraph 1400, an administrative violation, and of Paragraph 2507, a safety violation. It is unnecessary to detail the classes into which the violations charged in the other counts fall. For illustration, it is noted that of the nine violations charged in the first count of the indictment in case No. 5184, three are safety violations, two are technical violations, two are fire violations, one is a miscellaneous violation, and one is an administrative violation.

The appellant urges that each Building Code count charges two or more separate and independent offenses and is thus bad for duplicity. It is the general rule of the common law that an indictment should not charge in the same count the commission of two or more substantive offenses, and in the event that it does so it is objectionable because of duplicity. 27 Am. Jur. 683 ; 31 C. J. 758; 22 Cyc. 376; Mohler v. State, 120 Md. 325 , 87 A. 671 ; Weinstein v. State, 146 Md. 80 , 125 A. 889 ; Jackson v. State, 176 Md. 399 , 5 A. 2d 282 . But several distinct averments in a single count will not constitute duplicity if they collectively constitute but a single charge or transaction.

This principle was recognized by this court ⁶ in the case of Mohler v. State, supra, where at page 327 of 120 Md., at page 671 of 87 A., it is said: “But it is equally recognized, that a count is not double because it charges several related acts, all of which enter into and constitute one offense, although such acts may in themselves constitute distinct offenses. If the acts alleged are of the same nature, and so connected that they form one criminal transaction, they may be joined in one count, although, separately considered, they are distinct offenses.” The rule is stated in Hochheimer’s Criminal Law, Second.Edition, section 96, as follows: “Several acts, each in itself criminal, may be charged in one count, if they are of the same nature and so connected as to form, one criminal transaction, and within this rule, acts made punishable by a statute in the alternative may be charged conjunctively in one count, provided the offenses are not repugnant or subject , to different punishments.” The same rule is laid down in Bishop’s New Criminal Procedure, Vol. 1, Sections 432-441, inclusive. The question for our decision therefore is: Do the several Building Code counts each charge one criminal transaction or two or more distinct and separate offenses ? A careful study of. the counts fails to disclose any one offense charged thereby.

Each count charges several distinct and separate violations of certain enumerated paragraphs of the Building Code, which violations fall within different classifications under the Building Code and subject the offender, upon conviction thereof, to diverse penalties. What single criminal transaction is charged in the first count is case No. 5180, wherein the appellant is accused of failing to make the electrical equipment in the dwelling at 1822 Linden Avenue conform to the provisions of the Building Code, of failing to keep said dwelling and every part thereof in good repair and in a safe condition, of making certain repairs thereon without first obtaining a proper permit from the Buildings Engineer, and of failing to correct and remedy conditions on said premises ? Are not these four separate ⁷ and distinct offenses, entirely unrelated, and violating four distinct paragraphs of the Building Code, which as he have stated above fall within four different classifications and are punishable by different penalties ? It is our conclusion that the first count in case No. 5180 does not charge one criminal transaction but a series of separate and mutually independent offenses, which are not stages in one transaction and which are not so connected as to form a single offense.

We therefore hold that the said count is duplicitous and that the demurrer thereto should have been sustained. We do not find in this count such a recital of facts, as was contained in the indictment considered by this court in the case of Petrushansky v. State, 182 Md. 164 , 32 A. 2d 696 , sufficient to warrant our holding that it is good as a common law indictment. The same is true as to all other Building Code counts. We deem it unnecessary to discuss in detail the counts in cases Nos. 5181, 5182, 5183, 5184 and 5185.

The indictment in case No. 5187 differs from the other cases in that it charges by number only the violation of Paragraph 4350, which is a safety violation, but then proceeds in fact to charge not only this violation, relating to safe and adequate exits, but also the failure to keep the dwelling and every part thereof in good repair and in a safe condition while in use. This is a miscellaneous violation, set forth in Paragraph 4391, and it is a violation with which the appellant was charged, by specific paragraph number, in all other Building Code counts. We feel that it, too, charges two separate and distinct offenses under the Building Code and is, therefore, duplicitous. Holding, as we do, that all Building Code counts are bad because of duplicity, it is unnecessary for us to pass upon the other objections urged by the appellant against them or some of them, namely: that they should aver notice by the municipal