State v. Lassotovitch

Digges, J., delivered the opinion of the Court. Nos. 16, 17, 18 and 19 of this term present the same question for determination by this court, and were argued together. They are appeals by the State of Maryland from orders of the Criminal Court of Baltimore City sustaining demurrers interposed by the respective accused to the indictments and each and every count thereof. We will only discuss the indictment in No. 16, as each will be controlled by and must stand or fall upon the determination in -that case.

The indictment is drawn under the provisions of the Act of 1910, chapter 94, now appearing in the Charter and Public Local Laws of Baltimore City, 1927, as secs. 516 and 516B. Section 516 provides: “That eight hours shall constitute a day’s work for all laborers, workmen or mechanics who may be employed by or on behalf of the Mayor and City Council of Baltimore, except in cases of extraordinary emergency, which may arise in time of war ok in cases where it may be necessary to work more than eight hours per calendar day for the protection of property or human life; provided, that in all such cases the laborer, workman or mechanic so employed and working tol exceed eight hours per calendar day shall be paid on the basis of eight hours constituting a day’s work; provided further, that the rate of per diem wages ¹⁴⁹ paid to laborers, workmen or mechanics employed directly by the Mayor and City Council of Baltimore shall not be less than two dollars per cliem; provided further, that not less than the current rate of per diem wages in the locality where the work is performed shall be paid to laborers, workmen or mechanics employed by contractors or sub-contractors in the execution off any contract or contracts, in any public work within the City of Baltimore.” According’ to the provisions of section 516B, any contractoff or subcontractor, or other person acting for them, violating any of the provisions of this act, is subject to a fine of not less than ten dollars nor more than fifty dollars for each and every offense. The pertinent language of the first count off the indictment is that the appellees “on the ninth day off May, in the year of our Lord nineteen hundred and thirty-one, at the City aforesaid being then and there subcontractors engaged in the execution of a contract in public work within the City of Baltimore», unlawfully did pay less than the current rate of per diem wages in the locality where the work was performed, to laborers, wo>rkmen and mechanics employed in the execution of a contract in public work, within the City of Baltimore, contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State.” The remaining counts charge the offense in the words of the first count, except that the payment is alleged to» have been made on other and different dates. The appellees contended in the trial co»urt that their demurrer to the indictment should be sustained for two reasons, first, because the statute involved is unconstitutiolnal as to» its minimum wage feature; and, second, because the particular act .which constituted the alleged offense is not described with sufficient accuracy and definiteness to inform the accused of what he is called upon to defend, and protect him against future prosecution.

The trial judge held the statute valid, but that the indictment was fatally defective for the seco»nd reason abo»ve stated, ¹⁵⁰ sustained the demurrer and discharged the traversers. Our views being in accdrd with the lower court on the second point, and so requiring an affirmance of the order appealed from, it is unnecessary to> discuss the constitutionality of the minimum wage provision of the statute. It will be noted that the indictment charges the offense in the words of the statute. The State contends that such statement of the charge is all that the law requires, and cites decisions of this court in support of that proposition.

It is mo longer open to controversy in this state that the general rule, as contended for by the appellant, is firmly settled. That is to say, in indictments for statutory offenses in describing the act, the doing of which, or omitting to do which, constitutes the crime, it is sufficient to describe said act in the words of the statute. Bosco v. State, 157 Md. 407, 146 A. 238 , and cases there cited, to which might be added many others. The effect of these decisions is to hold that the pleader, in describing the act of the accused which is sought to be punished, can safely use the words employed by the Legislature; and generally this will be sufficient.

But this dotes not mean that it is unnecessary to allege such facts in connection with the commission of the offense as will certainly put the accused on full notice of what he is called upon to defend, and establish such a record as will effectually bar a subsequent prosecution for that identical offense. In other wdrds, the language of the statute, when used, is a sufficient description of the crime; and if the statute contains all of the elements necessary to constitute a crime, the indictment is sufficient to describe the offense, if laid in the words of the statute. However, it is clear that an indictment which charges the accused with the act prohibited by the statutory language, and does nothing more, woluld be fatally defective in failing to allege such other facts as would enable the accused to prepare his defense. “In all criminal prosecutions, every man has a right to be informed of the accusation against him,” and “to have a copy of the indictment or charge in due time (if required) to' prepare ¹⁵¹ for his defense.” Article 21, Maryland Declaration of Rights. In Goeller v. State, 119 Md. 61 , 85 A. 954, 955 , lodge Pearce, speaking for the court, in respect to this article, said: “The information hereby guaranteed to him is not to be conveyed by word of month, nor by any other means than by ‘a copy of the indictment or charge/ or accusation, upon which he is to be tried, and it is a guaranty that ho must be informed of the whole charge or accusation against him, and not of a part only.

The reason for this is given in the same article of the Declaration of Rights, viz., To prepare for his defense/ and this he cannot do without a full knowledge, both of every element of the offense charged and of the penalty or penalties to which he may be subjected in event of conviction.” In State v. Nutwell, 1 Gill, 54 , it was said: “Certainty to a reasonable extent is an essential attribute of all pleading,, both civil and criminal, but is' more especially necessary in tbe latter, where conviction is followed by penal consequences. One of its objects is notice to the party of tbe nature of tbe charge, against which he is to come prepared to defend himself; and it is also necessary, not only that the offense may be displayed upon the record, so as to enable the court to pronounce the sentence of the law, but to enable tbe party to defend himself against a second prosecution for the same crime, by pleading a prior acquittal or conviction.” Tbe indictment in that case was under the Act of 1811, ch. 227, which made it unlawful for any licensed retailers in-Calvert County to suffer any slave to be in a storehouse where they were accustomed to sell liquors, between sunset in the evening and sunrise of the succeeding morning. The indictment charged that the accused, being then and there a licensed retailer, suffered a slave to be in his storehouse, where he was accustomed to sell liquors, between the prohibited hours. It did not allege the name of the slave or any method of identifying him.

The court said: “In the case now before this court, the indictment, we think, is defective, in omitting the name of the slave and that of the- ¹⁵² master, if known, if not known, the fact should have been so stated in the indictment. Such an averment in the indictment was requisite, not only to inform the accused of the charge alleged against him, so as to prepare for his defense, but to prevent a second punishment for the same offense, by pleading in bar a former acquittal or conviction.” In Mincher v. State, 66 Md. 227 , 7 A. 451 , the statute involved required each registration officer in Baltimore City, within three days after the expiration of his September sitting, and within the same time after his October sitting, to “make, complete and publish two alphabetical lists, one of which shall comprise the names of those persons whom” he has “stricken from” the registry of qualified voters, and the other “shall comprise the names and residences of the persons whom” he has “newly registered as qualified voters” at his preceding sitting, and also the names of those whom the judges have ordered to be registered, and “shall cause said respective lists to be published by handbills posted in sucb public places as he may select in his election district or the accused was convicted charged in substance the violation of the above-quoted part of the statute. The penal clause of the act made it a misdemeanor and provided a penalty “if any officer of registration shall do any act which is by this act forbidden to be by him done, or shall omit to do any act which is by this act required to be by him done.” One of the grounds of the demurrer to the indictment was that it failed to state the names of the registered voters untruthfully set forth in the published list as having been stricken from the registration books. This contention was overruled below, and that action was sustained on appeal, for the reason'that the publishing of an incorrect list was the act prohibited by the statute; therefore the offense was committed when such incorrect list was published, and it was unnecessary to allege the number or names of the individuals which appeared upon the incorrect list. election precinct.” The count of the indictment upon which After stating the contention of the traverser, Judge Miller said: “But this is not an indictment for a common-law of ¹⁵³ fense, but for an offense created by statute, and in such cases the general rule is that the indictment is sufficient if it follows the language of the statute. * * * Setting out of names is no doubt essential in indictments under a certain class of statute, such as those prohibting the sale of liquor without license, or to minors, or on Sunday, or on election day; because in such cases each sale is a separate offense, and the party may be indicted for each.

In such cases the name of the party to whom the liquor was sold must be stated, if known, and, if unknown, it must be so alleged. This class of cases is well illustrated by that of State v. Nutwell, 1 Gill, 54 , where the court said, the setting out of the name of the slave and his master, if known, or, if not, so to allege, was requisite not only to inform the accused of the charge alleged against him, so as to enable him to prepare for his defense, but to prevent a second punishment for the same offense, by pleading in bar a former acquittal or conviction. In other words, the indictment must be so framed as to enable the accused to defend himself against a second prosecution for the same crime. This case has been folloAved in all subsequent cases in this state, under similar statutes.

But in the case now under consideration the naming of the parties improperly included in the list is, as it seems to us, not essential on either of the grounds stated in State v. Nutwell. The offense, as we haA'e construed the statute, consists in making out and publishing a false list of the names of