Opinion
[No. 187, October Term, 1947.]
Decided June 17, 1948.
Criminal Law — Indictment — Substantial Components of Crime — Laid in Words of Statute — Using "And" Instead of "Or" — Evidence in Case of Minister Charged with Advertising to Perform Marriages.
Substantial components of the crime charged must be set out in an indictment with such particularity that the accused knows with what he is charged and, if he is tried, the recitals may be sufficient to protect him from a second trial for the same offense. pp. 77-78
Where an indictment is laid in the words of the statute, it will ordinarly be sufficient. p. 78
The insertion of "and" in an indictment in place of "or" in the statute is the proper method in a case where a number of different but allied things are forbidden by the statute. Where "or" is used in an indictment, it will be defective, but where "and" is used the indictment will be good, and the crime will be established at the trial by proof of any of the forbidden things charged. p. 78
The Court of Appeals cannot review the sufficiency of the evidence in a criminal case. p. 78
The fact that a minister who put out a sign advertising himself as a minister was not a pastor of a church and performed no ministerial duties other than marrying people was pertinent and admissible on a criminal charge that the sign was erected with the intention of aiding in the solicitation of performance of marriages as prohibited by the statute. pp. 78-79
The indictment of the appellant in this case was in the exact words of the statute except that "and" was used where "or" was used in the statute under which the indictment was brought. Appellant demurred to the indictment on the ground that he was not charged with any single crime with sufficient particularity to know what he was being charged with and to protect him from a second trial for the same offense. The Court, applying the above-stated principles of law, affirmed the order of the trial court overruling appellant's demurrer. The Court, also, found to be without merit appellant's contention that the trial court erred in considering as part of the evidence the fact that the defendant, while a minister, was not a pastor of any church and performed none of the customary ministerial duties except the performance of marriages. pp. 77-79
Decided June 17, 1948.
Appeal from the Circuit Court for Cecil County (KNOTTS, C.J. and HORNEY and KINTNER, JJ).
Robert J. Sturgill was convicted of violating Code (1947 Supp.), Art. 27, § 444A, penalizing the erection or maintenance of billboards etc., or information booths, intended to aid in solicitation or performance of marriages, and he appeals.
Judgment affirmed.
The cause was argued before MARBURY, C.J., DELAPLAINE, COLLINS, GRASON, HENDERSON, and MARKELL, JJ.
James F. Evans for the appellant.
Hall Hammond, Attorney General, J. Edgar Harvey, Assistant Attorney General, Clarke Murphy, Jr., Special Assistant Attorney General, Henry L. Constable, State's Attorney for Cecil County, and J. Gifford Scarborough, Assistant State's Attorney for Cecil County, for the appellee.
The appellant was indicted by the grand jury of Cecil County for violation of Section 444A of article 27 of the Annotated Code of Maryland. The indictment charges that the appellant, on September 1, 1947, "did unlawfully erect and maintain billboards and other structures, signs, posters and display advertising, either as separate structures or otherwise, and information booths, intended to aid in the solicitation and performance of marriages." Appellant demurred to this indictment. His demurrer was overruled, and after trial by the court he was found guilty and sentenced to pay a fine of $50 from which judgment and sentence he appeals here.
The basis of appellant's demurrer is that the indictment does not embody a distinct accusation of a single crime, but charges the defendant with a half dozen different, separate and distinct crimes, and that the appellant is not protected from a second trial for the same offense, because no one crime of which he is charged is set out with such particularity that it can be determined with what he is being charged. In support of this proposition, the cases of State v. Lassotovitch, 162 Md. 147, 159 A. 362, 81 A.L.R. 69, and Imbraguglia v. State, 184 Md. 174, 40 A.2d 329, are cited. These cases are authority for the general principle that the substantial components of the crime charged must be set out with such particularity that the accused knows with what he is charged and, if he is tried, the recitals may be sufficient to protect him from a second trial for the same offense.
The indictment in the case before us is in the exact words of the statute, except that the conjunction "and" is used in the indictment in such places as the conjunction "or" is found in the statute. The rule is that where an indictment is laid in the words of the statute, it will ordinarily be sufficient. State v. Petrushansky, 183 Md. 67, 36 A.2d 533 and cases there cited and discussed. The insertion of "and" in place of "or" is the proper method in a case where a number of different but allied things are forbidden by the statute. This Court has several times said that where "or" is used in an indictment, it will be defective, but where "and" is used the indictment will be good, and the crime will be established at the trial by proof of any of the forbidden things charged. Stearns v. State, 81 Md. 341, 32 A. 282; Pritchett v. State, 140 Md. 310, 117 A. 763; Reynolds v. State, 141 Md. 637, 119 A. 457. It seems to be clear, therefore, that the indictment is sufficient and the order of the court overruling the demurrer was correct.
The appellant also seems to object to the sufficiency of the evidence, and to the fact that the court, in its memorandum, considered, as part of this evidence, the fact that the defendant, while a minister of the Gospel, is not the pastor of any church, and performs none of the customary ministerial duties except the performance of marriages. We cannot, of course, review the sufficiency of the evidence in a criminal case. Davis v. State, Md. 55 A.2d 702. It does not appear from the appendices how this evidence was introduced, and whether an objection was made to it, although the appellant, in his brief, states that he objected to practically everything that the state offered. If we treat the contention of the appellant as an objection to the evidence, we do not think it well founded. The statute, under which he was indicted was upheld by this Court in the case of State v. Clay, 182 Md. 639, 35 A.2d 821. In view of the evidence that the appellant put out a sign advertising himself as a minister, the fact that he was not a pastor of a church and performed no ministerial duties other than marrying people was pertinent and admissible on a charge that the sign was erected with the intention of aiding in the solicitation of performance of marriages as prohibited by the statute.
Since we find no error in the rulings of the trial court, the judgment will be affirmed.
Judgment affirmed, with costs.