State v. Levitt

Orth, J., delivered the opinion of the Court. The General Assembly has declared it to be the policy of Maryland that "it is necessary to regulate and control the manufacture, sale, distribution, transportation and storage of alcoholic beverages within this State and their transportation and distribution into and out of this State to obtain respect and obedience to law and to foster and promote temperance.” Md. Code (1957, 1976 Repl. Vol.) Art. 2B, § 1. In furtherance of that policy, and "for the protection, health, welfare.and safety of the people of this State,” id., it devised a comprehensive scheme, comprised of the "restrictions, regulations, provisions and penalties . ..” contained in Art. 2B, sometimes hereinafter referred to as the Alcoholic Beverages Law.

To enhance the integrity of the scheme and to promote the administration and enforcement of it, various penalties were prescribed for violations of its provisions. Art. ³ 2B, §§ 198-203. Section 198, under the heading "False statements,” reads: "If any signed statement, report, affidavit', or oath, required under any of the provisions of this article, shall contain any false statement, the offender shall be deemed guilty of perjury, and upon conviction thereof, shall be subject to the penalties provided by law for that crime.” During the forty-eight years since the enactment of the Alcoholic Beverages Law — Acts 1933 (Special Session) Chapter 2 — an appellate court of this State has not had occasion to construe the provisions of § 198 or to determine its constitutionality. These appeals shall call on us to do so. 1 At the center of each of the two cases before us is an application for renewal of a liquor license.

The renewal application is required by § 68 of Art. 2B, which provides, inter alia, that "| tjhe holder of any expiring license ... shall [within a designated time] file a written application, duly verified by oath, for the renewal of such license with the official authorized to approve the same.” The applications here, addressed to the Board of Liquor License Commissioners for Baltimore County, warn against making a false statement by setting out an "extract” from § 198 which is practically a repetition of its provisions. The applications include a certification by the applicants over their purported signatures that "the facts and information set forth in the application upon which the present license was issued are unchanged.” They contain an "Affidavit” in which a notary public certified over his signature and Notarial Seal that the applicants named therein personally appeared before him "and made oath in due form of law that the matters and facts contained in said application are true.” Each application was the basis of an indictment filed in the Circuit Court for Baltimore County. The indictments present, respectively, that Nicholas Kourkoules (Appeal No. 928) and Jeffrey Levitt (Appeal No. 690) ⁴ "did unlawfully make and sign a renewal application for Alcoholic Beverage License to the Board of Liquor License Commissioners for Baltimore County under the provisions of the State Alcoholic Beverage Law, Article 2B, § 68 of the Annotated Code of Maryland, to wit: unlawfully and falsely did certify that the facts and information set forth upon which this license was issued are unchanged, the matters so stated being material, willfully, corruptly, and knowingly false 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.” Below this is typed "(Article 2B, § 198 — False Statement).” The Kourkoules Case Kourkoules filed a motion to dismiss the indictment. 2 The State answered, and the matter was heard and determined by the Circuit Court for Baltimore County (Alpert, J.) prior to trial. The court issued an order granting the motion.

From this final order the State appealed. Md. Code (1974, 1980 Repl. Vol.) § 12-302 (c) of the Courts and Judicial Proceedings Article. The issue before us is whether § 198 of Art. 2B is void as repulsive to the dictate of constitutional due process because of vagueness.

See Bowers v. State, 283 Md. 115, 120, n.5 , 389 A.2d 341 (1978). At the hearing on the motion, Kourkoules argued that § 198 of Art. 2B was unconstitutionally vague because it "did not set forth there must be a wilful rather than a negligent or unknowingly false statement,” and because it did not require that the false statement be material. 3 The State’s ⁵ position was that the Legislature had made the mere making of a false statement in a signed statement, report, affidavit, or oath, required by the Alcoholic Beverages Law, the crime of perjury; the perjury elements do not "enter into it.” The only element, the state urged, is that such a false statement be made and, if it were, the one making it (the offender) committed the crime proscribed. As we have indicated, note 3 supra, § 198 had been declared to be unconstitutional by Raine, C.J. in the Levitt case. Chief Judge Raine found that the statute was unconstitutionally vague because it "refers to 'the offender,’ without specifying with any particularity the conduct that renders one an offender.

It equates the offense with the crime of perjury but refers merely to a signed statement. If such a statement was not under oath, it would not be deemed to be perjury. It refers to a 'report.’ If a verbal report was false, would the person making the oral statement be an offender? Does an 'offender’ encompass the notary?

Is one who utters a false document an 'offender’? All of these questions are the subject of speculation. Is one who makes a false statement believing it to be true, an 'offender.’? ” "There is little doubt,” the judge observed, "that the Legislature intended to punish a person who made a false statement in writing under oath.” But, the judge opined: "If that were all the Legislature intended, the Statute would have been unnecessary, for the person making the false statement under oath could be charged with the crime of peijury.” The judge admonished: "If the Legislature had meant to create a new crime, they should have used specific language such as is found in every other criminal statute to which the Court’s attention has been directed.” ⁶ Judge Alpert adopted the opinion of Chief Judge Raine by reference but disagreed with parts of it. He thought that it was "relatively clear that the Legislature desired to engraft the elements of peijury into this statute, . .but he also thought that "it [was] fundamentally clear they failed to do so.” This failure, which Judge Alpert believed the Legislature did not intend, left the meaning of the provisions vague, particularly with respect to criminal intent.

Mens rea, the judge pointed out, is a necessary element of a crime. Although "[i]t is within the power of the Legislature, if it sees fit, to dispense with the necessity for a criminal intent, and to punish particular acts without regard to the mental attitude of the doer,” such intention must clearly appear. Judge Alpert thought that it did not clearly appear in this statute. The tenets of the void-for-vagueness doctrine were lucidly set out in Bowers v. State, supra, and supported by ample authority.

"The cardinal requirement is that a penal statute 'be sufficiently explicit to inform those who are sub-r -ject to it what conduct on their part will render them liable to its penalties.’ . . . '[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.’ ... The Fifth and Fourteenth Amendments guarantee that '[n]o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.’ ” 283 Md. at 120 (citations omitted). "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.” Id. at 125 . ⁷ Two basic criteria should be considered in assessing the constitutionality of a statute assailed as overly uncertain either in respect of the acts it purports to prohibit or the persons to whom it applies.

The first criterion is the fair notice principle. Simply put, it is that "[sjince 'vague laws may trap the innocent by not providing fair warning,’... no one should be subject to criminal responsibility for conduct which he could not reasonably understand to be prohibited.” Id. at 120-121 , (citations omitted). The second criterion is the failure to provide legally fixed standards and adequate guidelines for police, judicial officers, triers of fact and others whose obligation it is to enforce, apply and administer the penal laws. A statute is not void merely because it allows for the exercise of some discretion on the part of law enforcement and judicial officials, but it must not be so broad as to be susceptible to irrational and selective patterns of enforcement.

Id. at 121-122 . The general rule is that the constitutionality of a statutory provision challenged for vagueness must be determined strictly on the basis of the statute’s application to the particular facts at hand. "Thus, it will usually be 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. at 122 . When, however, a criminal statute may, because of imprecise draftsmanship, impact upon fundamental constitutional liberties, particularly the First Amendment guarantees of free speech and assembly, the void-for-vagueness doctrine demands a greater degree of specificity than in other contexts.

"Translated, this principle of strict specificity means that where First Amendment values are at least potentially involved, the statute is to be tested for vagueness on its face.” Id. at 122-123. Since the statute here does not intrude upon the First Amendment guarantees, it is to be tested under the general rule. See In re Leroy T., 285 Md. 508, 511-512 , 403 A.2d 1226 (1979), citing and applying Bowers . Therefore, the heart of the issue before us is whether, on the basis of the facts at hand, the statute gives adequate notice and has sufficient adjudicative ⁸ guidelines in respect to the acts it purports to prohibit and to the persons to whom it applies.

In other words, whether it is constitutional under the void-for-vagueness doctrine as it applies to Kourkoules. Section 198 of Art. 2B is not overly uncertain in respect of the persons to whom it applies. It speaks in terms of "the offender.” Webster’s Third New International Dictionary (1967) defines "offender” as "one that violates a law, rule, or code of conduct; one that commits an offense.” Black’s Law Dictionary (4th ed. 1951) speaks of offender as "[cjommonly used in statutes to indicate person implicated in the commission of a crime. . ..” It is readily apparent from a plain reading of the statute that a person who commits the acts it proscribes is "the offender” it punishes. On the basis of Kourkoules’ conduct as alleged, the statute clearly applies to him. 4 Having determined that the contested statute is not unconstitutionally vague in respect of the persons to whom it applies, we test it in respect of the acts it purports to prohibit.

Section 198 deals with false statements in any signed statement, report, oath, or affidavit required under any of the provisions of the Alcoholic Beverages Law. It declares that the person who makes such a false statement "shall be deemed guilty of perjury, and upon conviction thereof, shall be subject to the penalties provided by law for that crime.” Since the offender is subject to punishment only upon conviction of perjury, the elements of that offense are necessarily incorporated into § 198. The crime of perjury was part of the common law to which the inhabitants of Maryland became entitled by the decla ⁹ ration in Art. 5 of the Declaration of Rights, Constitution of Maryland. Deckard v. State, 38 Md. 186, 201-202 (1873).

The Legislature has enacted a Perjury Act which explicitly recognizes common law perjury. Md. Code (1957,1976 Repl. Vol.) Art. 27, §§ 435-439. See Tischler v. State, 206 Md. 386, 391 , 111 A.2d 655 (1955).

Section 435 of the Act provides, in relevant part: "An oath or affirmation, if made willfully and falsely in any of the following cases, shall be deemed perjury: First, in all cases where false swearing would be perjury at common law; secondly, in all affidavits required by law to be taken____” In the statute, perjury encompasses common law perjury as well as other acts which at common law constituted the lesser crime of false swearing. 5 Gatewood v. State, 15 Md. App. 314, 317 , 290 A.2d 551 (1972). What constituted perjury at the common law is universally accepted. At the common law perjury is "a crime committed when a lawful oath is administered, in some judicial proceeding, to a person who swears wilfully, absolutely, and falsely, in a matter material to the issue or point in question.” 4 Blackstone, Commentaries * 137 citing 3 Coke, Inst. * 163. Similar definitions are given in Hochheimer, Criminal Law § 404 (2d ed. 1904); Clark & Marshall, A Treatise on the Law of Crimes § 14.03 (7th ed. 1967); 3 Wharton, Criminal Law and Procedure § 1290 (Anderson ed. 1957).

The Maryland cases are in accord. See Brown v. State, 225 Md. 610, 616 , 171 A.2d 456 (1961); State v. Mercer, 101 Md. 535, 538 , 61 A. 220 (1905); State v. Floto, 81 Md. 600, 601 , 32 A. 315 (1895). The same elements appear ¹⁰ in all the definitions: (1) a false oath, (2) wilfully and corruptly made, 6 (3) in a judicial proceeding, (4) as to a matter material to the point in question. Just as the Legislature has specifically eliminated the necessity of a judicial proceeding as an element of perjury by the provisions of § 435 of Art. 27, so, in § 198 of Art. 2B, it has explicitly obviated a false oath as a necessary element of perjury as far as the Alcoholic Beverages Law is concerned.

Section 198 deems to be perjury a false statement in any signed statement or report required by that Law even though the document was not under oath or affidavit. This is not unique. "[Tjhere is not the slightest doubt that the Legislature had the power to define what acts shall constitute criminal offenses and what penalties shall be inflicted on offenders, the only limitation being that such enactments shall not infringe on constitutional rights and privileges.” Greenwald v. State, 221 Md. 235, 240 , 155 A.2d 894 (1959), appeal dismissed, 363 U.S. 719 (1960). See Glickfield v. State, 203 Md. 400, 404 , 101 A.2d 229 (1953); State v. Seney Company, 134 Md. 437 , 107 A. 189 (1919).

In Greenwald the Court found that the legislative removal of an oath as a necessary element of the crime of perjury with respect to procurement of a marriage license was valid. The statute there, § 11 of Art. 62, deemed a material false statement, knowingly made, to be perjury. The Court observed that "there was no reason why the Legislature could not remove the requirement of an oath, and in this ¹¹ instance it has explicitly and effectively done so by providing a non-oath substitute for it as it has done several times before.. .. All such substitutions, however, either directly or impliedly, are made the equivalent of an oath.” 7 221 Md. at 241 .

The Court found it implicit in the marriage license law that the non-oath substitute was the equivalent of an oath. Following the Greenwald rationale, the signed statement or report in § 198 is a non-oath substitute and is the equivalent of an oath. It is clear that the Legislature intended to remove the requirement of an oath in this context. Originally the "False statements” provisions concerned only "any affidavit or oath required under the provisions of [Art. 2B], . . .” Acts 1933 (Spec.

Sess.) ch. 2, § 35. The section was amended by Acts 1939, ch. 775, § 53B to add any signed statement or report. Thus, the Legislature explicitly and effectively provided a non-oath substitute for the requirement of an oath as an element of perjury with respect to the Alcoholic Beverages Law. The signed statement or report called for in § 198 is the equivalent of the oath required in common law perjury and reference hereinafter to "oath” includes this non-oath substitute.

It is abundantly clear that § 198 of Art. 2B feeds on § 435 of Art. 27 which, in turn, feeds on the common law. Therefore, except for the necessity of a judicial proceeding, which has been explicitly eliminated by including false swearing, all the elements of common law perjury are present in § 198. The requirement of an oath is expressly satisfied as the unsworn signed statement or report is a valid non-oath substitute. The element of falsity is specifically designated.

The requirement that the false oath be wilfully and corruptly given and that it be in regard to a material matter is read into the statute through Art. 27, § 435 and the common law. The implication rather than the expression of wilfulness, corruption and materiality does not, in the ¹² circumstances, bring the statute within the void-for-vagueness doctrine. The view above expressed is consistent with the principles of statutory construction. Both Art. 27, § 435 and Art. 2B, § 198 deal with the crime of perjury.

"[Wjhere possible, statutes dealing with the same subject matter should be construed as supplementary to each other.” State v. Fisher, 204 Md. 307, 314 , 104 A.2d 403 (1954). "Statutes which relate to the same subject-matter and are not inconsistent with each other are in pari materia, and should be construed together so that they will harmonize with each other and be consistent with their general object and scope, even though they were passed at different times and contain no reference to each other.” Pressman v. Elgin, 187 Md. 446, 450 , 50 A.2d 560 (1947), and cases therein cited. See Finance Co. v. Schlissler, 165 Md. 585, 586-587 , 170 A. 173 (1934). Furthermore, "[tjhere is the . .. presumption that the Legislature had full knowledge of and information as to existing law and legislation on the subject matter of the statute it was enacting.” St. Joseph Hospital v. Quinn, 241 Md. 371, 379, 216 A.2d 732 (1966).

Section 198 of Art. 2B deems the offender guilty of perjury and makes him subject upon conviction to the penalties provided by law for "that crime.” "That crime” is defined in § 435 of Art. 27 which not only refers to the common law but speaks in terms of "willfully and falsely,” which, as we have indicated, includes "corruptly.” In the permissible form of indictment for the crime, prescribed by the Legislature in § 436 of Art. 27, the elements of wilfull and corrupt false swearing to material matters, the common law elements, are expressly set out. In the light of all this it would take a strained construction indeed to find that § 198 deems to be a perjurer a person who makes an untrue statement by mistake of fact or law or by defect of memory, or inadvertently, or with sincere belief in its complete and undoubted accuracy. It would not only be contrary to statutory construction but repellent to reason and common sense to interpret the statute as encompassing ¹³ a false statement regarding some matter not material to the subject. What constitutes perjury as used in § 198 can be fairly ascertained by reference to Maryland statutes on the subject, judicial determinations, the common law, dictionaries and treatises.

See Bowers, 283 Md. at 125 . Therefore, it is explicit enough to enable a