Advanced Criminal Law CRMJ 384: Matter of Jerome


Court of Special Appeals of Maryland

15 Md. App. 252; 289 A.2d 846

April 25, 1972, Decided

SUBSEQUENT HISTORY:  [***1]  Certiorari Denied, Court of Appeals of Maryland, June 29, 1972. DISPOSITION: Adjudication of 28 July 1971 of appellant as a delinquent child and disposition order of 1 October 1971 affirmed.

SYLLABUS Walter Jerome Nawrocki was determined to be a delinquent child, and, from an order committing him to the Division of Juvenile Services of the Department of Health and Mental Hygiene with a recommendation that he be confined at a forestry camp in Western Maryland, he appeals.

OPINION BY: ORTH  [*255]   [**848]  The keystone of this case is the determination by the [***6]  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. – – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – – 1 …”‘Delinquent Act’ means * * * an act which would be a crime if done by a person who is not a child.” Id., at § 70-1 (g). … – – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – I The Court of Appeals pointed out in Drews v. State, [***7]  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. …  [**849]  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 [***8]  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,  [***9]  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, calamity,  [*257]  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

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – – 4 The meanings above set out are from the American Heritage Dictionary of the English Language. … – – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

Interpreting the statutes, by the express provisions of § 121, other persons must be within hearing of the disturbing [***10]  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  [**850]  it was in the cases of common law predecessor crimes, is the doing or saying, or both, of that which offends, disturbs,  [*258]  incites, or tends to incite, a number of people gathered in the same area.  [***11]  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, … 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 [***12]  “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…  [***13]   [*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. … So we have no difficulty whatsoever [***14]  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. …  [**852] 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 profane  [*262]  language and threatening a prisoner and failing to obey a lawful order. This offense occurred [***18]  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 crossexamination Smith made clear that “When I got to the point where I heard [Nawrocki] threaten my prisoner and using profane [***19]  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 [***20]  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.  [**853]  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 [***21]  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
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – – 7 In the 1969 edition, however, Perkins repeated that under the common law theory an officer undertaking an arrest which was in fact unlawful was neither discharging the duties of his office nor attempting to do so and that therefore the intended arrestee was privileged to use reasonable force to prevent the unlawful deprivation of his liberty. He then observed: “But the problems involved are so complicated that it is easy for either the officer or the arrestee to be mistaken in regard to the lawfulness of the arrest and it seems wise to require such issues to be decided in court rather than by force and the present trend, by statute, is to provide that there is no privilege to resist an arrest which the arrestee knows is being made by a peace officer, even if the arrest is unlawful.” At 496. Maryland has no such statute. [***22]  8 “While it is the duty of the citizen to submit to lawful arrest, mere flight to avoid apprehension does not constitute resisting an officer because there is a distinction between avoidance and resistance or obstruction. Jerking away from an officer is obstructing him but cursing him is not, and if an arrestee while being taken to the police station struck the officer for the sole purpose of venting spleen upon him, this constituted an assault but not resistance to arrest. On the other hand, any force wilfully employed to prevent the success of the officer’s effort is an obstruction of justice whether by the one to be arrested or by another.” Perkins, Criminal Law (2d Ed., 1969) 496-497. Wharton, supra, says, § 1618: “Generally, some overt act is necessary; and in order that words alone may constitute the offense of wrongfully resisting arrest, it seems that they should be spoken under circumstances affording the person making the arrest reasonable grounds to believe that he cannot proceed with the arrest without incurring evident risk of serious injury. Merely being impertinent to an officer or daring him to make an arrest has been declared insufficient to amount to interference with him in the performance of his duties.” – – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –  [***23]  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.  [***24]  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,  [**854]  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 … – – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – – 12 The court said: “I note that on January 25, 1967, the respondent was found delinquent on the charge of malicious destruction of property, given a warning at that time. On June 29, 1970, he was found delinquent on a charge of trespass and was sent to the Maryland Children’s Center. I also note on February 28, 1964 he was found delinquent on a charge of being ungovernable and bevond the control of his parents, truancy, assaulting his two year old brother by throwing a carving knife at him, striking him in the forehead, given a warning at that time.” – – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – … Adjudication of 28 July 1971 of appellant as a delinquent child and disposition order of 1 October 1971 affirmed.