Matter of Nawrocki

Orth, J., delivered the opinion of the Court. The keystone of this case is the determination by the judge presiding in the division for juvenile causes of the Circuit Court of Baltimore City (juvenile court) that WALTER JEROME NAWROCKI was a delinquent child by reason of his delinquent act in committing the crime of disorderly conduct. * 1 Our inquiry turns first, therefore, to the crime of disorderly conduct, and then to the sufficiency of the evidence adduced to prove that Nawrocki was guilty of that offense. I The Court of Appeals pointed out in Drews v. State, 224 Md. 186 2 at 192 that although it is said that there was no common law crime of disorderly conduct, nevertheless it was a crime at common law to do many of the ²⁵⁶ things that constitute disorderly conduct under present day statutes. There are three statutes in this State making various acts of a disorderly nature a criminal offense — §§ 121, 122 and 123 of Art. 27 of the Code.

We look at such of the provisions of them as may be relevant to the matter at hand. Section 121 makes it a crime for any person “wilfully [to] disturb any neighborhood” in any city, town or county of this State “by loud and unseemly noises, or profanely [to] curse or swear * * * upon or near to any [public street or highway in any such city, town or county] within the hearing of persons passing by or along such highway * * *.” Section 122 makes it a crime for any person to act “in a disorderly manner to the disturbance of the public peace,” or “wilfully [to] act in a disorderly manner by making loud and unseemly noises or by profanely cursing, swearing or using' obscene language * * * on or about any public place * * *.” Section 123 (c) makes it a crime for any person to “act in a disorderly manner to the disturbance of the public peace, upon any street, highway, alley, park or parking lot, or in any vehicle that is in or upon any street, highway, alley, park or parking lot, in any city, town, or county in this State * * *.” 3 The terms employed by the statutes are not defined therein, so. we consider them in their common meaning. “Loud” is “characterized by high volume and intensity of sound * * * clamorous and insistent.” “Unseemly” and its synonyms such as “improper”, “indecorous”, “indelicate” mean “in violation of accepted standards of what is right or proper.” Within the contemplation of the statutes, “curse” and “swear” are synonymous — “to use profane oaths”, “abuse profanely”, “to invoke evil, calam ²⁵⁷ ity, or injury upon”, “to damn.” Although a synonym for “profane” is “blasphemous”, it is better here considered in its secular sense of being “abusive, vulgar, or irreverent language.” 4 See State v. West, 9 Md. App. 270 . Interpreting the statutes, by the express provisions of § 121, other persons must be within hearing of the disturbing noises. So a person standing on a county highway making loud and unseemly noises and profanely cursing and swearing would not be committing the crime proscribed by § 121 unless within the hearing of others passing by or along the highway.

We do not believe it necessary that the State prove such other persons in fact heard the noises; it would be sufficient if they were passing by or along the highway so that reasonably they may have heard them. We next look at § 123 because we think the judicial construction given subsection (c) thereof with which we are here concerned, 5 is germane to an interpretation of § 122. Section 123 prohibits acting “in a disorderly manner to the disturbance of the public peace” in certain public places. 6 The Court of Appeals in Drews v. State, supra at 192 discussed the nature of disorderly conduct under § 123 (see note 3 supra). It said: “The gist of the crime of disorderly conduct under Sec. 123 of Art. 27, as it was in the cases of common law predecessor crimes, is the doing or saying, or both, of that which offends, dis ²⁵⁸ turbs, incites, or tends to incite, a number of people gathered in the same area. 3 Underhill, Criminal Evidence, Sec. 850 (5th Ed.), adopts as one definition of the crime the statement that it is conduct ‘of such a nature as to affect the peace and quiet of persons who may witness the same and who may be disturbed or provoked to resentment thereby.’ ” It pointed out that it was a crime at common law to make loud noises so as to disturb the peace of the neighborhood, to collect a crowd in a public place by means of loud or unseemly noises or language, or to disturb a meeting assembled for religious worship or any other lawful purpose.

And it noted that it has been held that failure to obey a policeman’s command to move on when not to do so may endanger the public peace is within the contemplation of disorderly conduct. We think it patent that disorderly conduct within the contemplation of Drews requires the actual presence of other persons who “may witness” the conduct or hear the language and who “may be disturbed or provoked to resentment thereby.” The Underhill quotation was simply authority for the statement as to the gist of the offense set out immediately before — that the conduct or language offends, disturbs, incites or tends to incite “a number of people gathered in the same area.” Such construction is consistent with our opinions in Luthardt v. State, 6 Md. App. 251 and Streeter v. State, 5 Md. App. 435 . In Heinze v. Murphy, 180 Md. 423 , the Court held that an arrest and charge of disorderly conduct were not justified by evidence that the arrestee used profane language on the lawn of his home and refused to give an officer information regarding an automobile accident where there was no evidence that the language was heard by any person other than the officer or beyond the premises. At 428-429.

Cf. Sharpe v. State, 231 Md. 401 , in which Mar-bury, J. filed a dissenting opinion concurred in by Bruñe, C. J. and Hammond, J., and Hammond J. filed a concurring dissent in which Bruñe, C. J. concurred. ²⁵⁹ Section 122 proscribes two general courses of conduct on or about any public place. The first, “acting in a disorderly manner to the disturbance of the public peace” may be committed silently as by one indecently exposing his person, explicitly prohibited, or by failing to obey a lawful order of the police, such as a command to move on, when not to do so may endanger the public peace, implicitly prohibited by judicial construction of comparable provisions in Drews, supra. The second, as does § 121 explicitly and § 123 implicitly, contemplates noises made, either loud and unseemly, or by profanely cursing, swearing or using obscene language.

Prior to the enactment of ch. 520, Acts 1967, the two courses of conduct applied to persons “on or about any steamboat wharf, dock or public waiting room, or in or about the station grounds of any railroad in the State, or in or about any steamboat, streetcar, electric car, railroad car, passenger train or other public conveyance.” The 1967 amendment made the section applicable to public places generally by inserting the phrase “any public place” immediately preceding the other places designated. So we have no difficulty whatsoever in finding that the legislative intent was directed toward conduct which tended to disturb the public peace. Section 122 appears under the subtitle “Disturbance of the Public Peace”; its first proscription is disorderly conduct “to the disturbance of the public peace”; its other proscriptions designate places where the public is entitled to be and normally would be, and patently are intended to run to the benefit of the public. We feel that the section contemplates the actual presence of other persons who may be affected by the conduct or language proscribed, and that the construction given § 123 (c) is apposite to § 122.

Although the constitutionality of the statutes is not here challenged, the application of certain facets of them have constitutional connotations. The statutes punish spoken words, but they cannot apply to speech, although vulgar or offensive, that is protected by the First and Fourteenth Amendments. Terminiello v. Chicago, 337 U. ²⁶⁰ S. 1, 4-5. The Court said in Gooding v. Wilson, 405 U. S. 518 , 10 Cr.

L. 3137 at 3138: “The constitutional guarantees of freedom of speech forbid the States from punishing the use of words or language not within ‘narrowly limited classes of speech.’ Chaplinsky v. New Hampshire, 315 U. S. 568, 571 (1942). Even as to such a class, however, because ‘the line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn,’ Speiser v. Randall, 357 U. S. 513, 525 (1958), ‘[i]n every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom,’ Cantwell v. Connecticut, 310 U. S. 296, 304 (1940).” The State has the power to punish obscene expression, but to be obscene such expression must be, in some significant way, erotic, so as to conjure up such psychic stimulation in anyone likely to be confronted with it. Cohen v. California, 91 S. Ct. 1780, 1785 . And the State is free to ban the simple use, “without a demonstration of additional justifying circumstances, of so-called ‘fighting words,’ those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.” Ibid, quoting Chaplinsky v. New Hampshire, 315 U. S. 568 .

So a statute must be carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression. Only the courts of a State can supply the requisite construction of its State’s statutes; the Supreme Court lacks “jurisdiction authoritatively to construe state legislation.” United States v. Thirty-Seven Photographs, 402 U. S. 363, 369 . We deem the language prohibitions of the statutes here considered, as construed by Drews , to embrace only unprotected speech and not to apply to protected expression. The short of it is that ²⁶¹ the “obscene language” prohibited by the statute means obscene in the constitutional sense.

The “profanely cursing [or] swearing” prohibited by the statutes and the “saying” aspect of the gist of the crime of disorderly conduct as set out in Drews , mean “fighting” words. Gooding gives us guidance with respect to “fighting” words by quoting with approval the discussion of them by the Supreme Court of New Hampshire in the Chaplinsky case: “* * * [‘fighting’ words] have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed * * * The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight * * * Derisive and annoying words can be taken as coming within the purview of the statute [proscribing offensive, derisive and annoying words] * * * only when they have the characteristic of plainly tending to excite the addressee to a breach of the peace * * * The statute, as construed, does no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee * * 91 N. H. 310, 313, 320-321, 18 A. 2d 754 , 758 762 (1941). We note that whether the “loud and unseemly noises” prohibitions of the statutes are within the ambit of protected expression depends on the nature and content of them, a question to be determined on the facts of the particular case. II The petition filed against Nawrocki, born 25 January 1955, alleged that he was delinquent: “For the reason that on July 4th, 1971, 0355 hrs in the City aforesaid Jerry Walter Nawrocki charged with Disorderly Conduct by using pro ²⁶² fane language and threatening a prisoner and failing to obey a lawful order.

This offense occurred 2327 Essex Street. Jerry Walter Nawrocki unlawfully did Resist the arrest of one Officer Raymond Smith by jumping out of the cruiser and running. He was caught by Officer Allen Brenton. This offense occurred in the 2400 block Fait Avenue.” The evidence before the juvenile court at the time the court made its decision on the merits was scant.

Officer Raymond Smith of the Baltimore City Police Department testified that on 4 July 1971 about 3:40 a.m. he was in front of 2327 Essex Street “returning a juvenile home for his parents to sign a custody release report.” The juvenile prisoner was still in the police cruiser when Nawrocki, known to the officer only as “Dog”, “came over * * * and started an argument with the suspect I had in my car, began using profane language and threatened the suspect I had in my custody. * * * He was going to work him over and do him in and everything right down the line * * * was going to get even with him.” Smith testified: “I got out of the car to place him under arrest for being disorderly. He took off running.” On cross-examination Smith made clear that “When I got to the point where I heard [Nawrocki] threaten my prisoner and using profane language * * * I was going to place him under arrest.” It was as the Officer was getting out of the cruiser to do so that Nawrocki fled. “I was going to get out of the car to place him under arrest for disorderly conduct.” This was the extent of the evidence adduced pertinent to the offense of disorderly conduct. Smith further testified that after Nawrocki fled he released his juvenile prisoner (“the people had him sign off”) and cruised in the immediate area. He received certain information and returned to 2327 Essex Street.

He saw Nawrocki standing in front of the premises, “his right hand shoved down inside his pants waistband as if holding something. * * * I pulled up to the curb and ordered him to stop, and he took off running. He ran ²⁶³ east in the 2300 block of Essex Street, north on Montford Avenue, and east again in the 2400 block of Foster Avenue where he was stopped. He was placed under arrest and put in the cruiser.” A back-up cruiser responded to the scene (“a man alleged to be armed” call had been put over the police radio) and as it pulled up Nawrocki jumped out of Smith’s cruiser and attempted to flee. The officer in the back-up cruiser stopped him and he was taken to the Southeast Police Station.

The allegation of resisting arrest in the petition could have no direct bearing on the question of Nawrocki’s delinquency. If the evidence was sufficient to show that Nawrocki was guilty of the crime of disorderly conduct, this alone would support the finding of delinquency whether or not he resisted the arrest. But if the evidence was not sufficient to establish that Nawrocki was guilty of the crime of disorderly conduct, then he would not be guilty of the offense of resisting arrest because his arrest would be illegal. “A refusal to submit to lawful arrest and resistance to an officer of the law in the performance of his duties constitutes an offense at common law * * and is an offense in this State.” Preston v. Warden, 225 Md. 628 . See Lyles v. State, 10 Md. App. 265, 268 ; McGee v. State, 1 Md. App. 239, 241 ; Perkins, Criminal Law (2d Ed., 1969) 494-496; 4 Wharton’s Criminal Procedure (Anderson) § 1617.

In the 1957 edition of Perkins Criminal Law it is stated at 424: “One is privileged to use reasonable force to prevent the unlawful deprivation of his liberty. * * * Since he is in no way interfering with any lawful activity of the officer he is not guilty of obstructing justice even if he so far exceeds his privilege as to be guilty of some other offense. In other words resisting an unlawful arrest is not in itself a crime, whether it is by the intended arrestee or by others who come to his aid.” 7 ²⁶⁴ This State follows the view that if an arrest is illegal, the arrestee is justified in using any reasonable means, even force, to effect his escape. Williams v. State, 204 Md. 55, 64 ; Sugarman v. State, 173 Md. 52, 57 . 8 We do not find the evidence sufficient in law to show that Nawrocki was making loud and unseemly noises; there is nothing to indicate that he was talking other than quietly or in a normal tone of voice. Nor do we find it legally sufficient to prove that he was profanely cursing, swearing or using' obscene language.

The officer’s statement that Nawrocki was “using profane language” was a conclusion and in the absence of evidence setting out the language the officer concluded was profane there was not enough for the trier of fact to determine that the language was “profane” within the ambit of the statute. What the officer felt was “profane” may not have been profane within the contemplation of the statute. It was for the trier of fact, not the officer, to ascertain whether ²⁶⁵ the language was profane vel non. A bald statement by the officer characterizing the language as profane is simply not sufficient in law. “It is * * * often true that one man’s vulgarity is another’s lyric.” Cohen v. California, supra, at 1788.

In any event, profanity per se would not amount to disorderly conduct. The words used by Nawrocki would have to be “fighting” words to be punishable. If they were, then he acted in a disorderly manner to the disturbance of the public peace upon a public street in Baltimore City. It is clear that Nawrocki directed threats to the person the officer had in custody and that those threats were that he was going “to work [the prisoner] over, and do him in and everything right down the line * * * was going to get even with him.” We feel the lower court could have decided on the evidence, spare as it was, that Nawrocki’s words had a direct tendency to cause acts of violence by the prisoner, that is that they had the characteristic of plainly tending to excite the prisoner, inciting him to a breach of the peace.

And because the prisoner was in the legal custody of the officer, charged with the duty of his safekeeping, the directing of the words to the prisoner was in effect the directing of them to the officer who also may have been disturbed or provoked to resentment thereby, culminating in violence. Thus, the lower court properly could have found that the words used by Nawrocki were “fighting” words and concluded that he was guilty of disorderly conduct. 9 Although the proceedings of a juvenile court are not criminal in nature and its dispositions are not punishment for crime, see In re Hamill, 10 Md. App. 586, 591 , the rules of evidence applicable to criminal cases apply to ²⁶⁶ delinquency hearings, Maryland Rule 912 c, and a determination that a child is delinquent must be based upon allegations proved beyond a reasonable doubt, Code, Art. 26, § 70-18 (a). Therefore the sufficiency of the evidence is to be tested as in criminal causes tried without a jury.* 2345678* 10 See Rule 1086; Williams v. State, 5 Md. App. 450 . We cannot say that the lower court was clearly erroneous in its judgment on the evidence.

Ill Our determination that the evidence was sufficient in law to establish that Nawrocki was a delinquent child disposes of the first eight questions presented on this appeal. 11 The ninth question is “The trial judge in hearing testimony from the two witnesses as to the facts of this case, after a finding of delinquency was made, violated ²⁶⁷ appellant’s right to due process of law as guaranteed by the Fourteenth Amendment to the Federal Constitution.” This question is prompted by a general confusion shared at various times below by the defense, the prosecution and the court. When the Legislature revised the general law governing juvenile causes by ch. 432, § 2, Acts 1969, the Act, as implemented and supplemented by ch. 900 of the Maryland Rules of Procedure, effective 1 July 1969, clearly spelled out the principles to be observed and the procedures to be followed by the juvenile courts in the exercise of their jurisdiction. See In re Hamill, supra. When a petition under Art. 26, § 70-2 is filed alleging delinquency, see § 70-6, § 70-7, Rule 902 and Rule 903, the court shall hold an adjudicatory hearing, after which, if the allegations are sustained, it shall hold a disposition hearing.

Art. 26, § 70-17; Rules 908, 912, 913. However, before the adjudicatory hearing the court may hold a waiver hearing after proper notice, and waive its exclusive jurisdiction. Art. 26, § 70-16; Rule 911. See Matter of Brown, 13 Md. App. 625 .

In a delinquency case the State’s Attorney ordinarily prepares and presents the testimony in behalf of a petitioner, Rule 912 b, and a party is entitled to representation by legal counsel at all stages of any juvenile proceeding, Code, Art. 26, § 70-18 (d). In the instant case petition 149893, made by Officer Smith, authorized by in-take consultant T. Wise, was filed in the juvenile court on 6 July 1971. The petitioner prayed that the court make a finding and pass an