Kolker v. State

Henderson, J., delivered the opinion of the Court. This appeal is from a conviction upon the first, second, third, fourth and fifth counts of an indictment, in a trial before the court without a jury. The appellant was sentenced to one year and a fine of $500 on each of the first, third, ¹⁵⁸ fourth and fifth counts, and thirty days on the second count, all to run concurrently. The first and second counts were for keeping a bawdyhouse, and keeping a disorderly house, respectively.

Both of these are common law offenses, although the penalty for the second is fixed by Code (1957), Art. 27, sec. 125. Lutz v. State, 167 Md. 12 . The other counts were based on Code (1957), Art. 27, secs. 15 (a) and 15 (c). The appellant contends that there was no proof of scienter on the part of the accused, and that this is a prerequisite.

The State contends that at common law no scienter was necessary, since the crime was in the nature of a common nuisance or “public welfare” offense, citing Herzinger v. State, 70 Md. 278 as favoring the rule announced in Commonwealth v. Cobb, 120 Mass. 356 and Price v. State, 11 So. 128 (Ala.). See also Beard v. State, 71 Md. 275, 276 . Cf. Jenkins v. State, 215 Md. 70, 75 .

The appellant relies upon a New Jersey case to the contrary. State v. Mausert, 89 Atl. 1011 . Cf. State v. Western Union Tel.

Co., 97 A. 2d 480 (N. J.). For present purposes we may assume, without deciding, that scienter must be shown, at least in one of the statutory crimes set forth in sec. 15 (c) where the word “knowingly” is used. We think scienter was sufficiently shown. Cf.

Wild v. State, 201 Md. 73, 77 . The appellant had worked in the Piccadilly night club for 27 years, and had been the proprietor for three years. He sat on an elevated platform, where he played the drums, in a three piece orchestra, with a good view of the whole room. He employed some twenty to twenty-five women, some of whom were strip tease entertainers, some of whom were hostesses who sat and drank with male patrons, some were waitresses.

There was testimony from four employees that they had performed, or seen others perform, lewd acts in the darkened corners of the room, in which they remained each night from 8 P.M. to 2 A.M. The hostesses and waitresses were paid only two dollars per night. As Miss Sanders