*1
Court of 12, 1985. June *3 Defender, L. Kopolow, (Alan John Asst. Public Baltimore Murrell, Defender, H. Baltimore, brief), Public on for appel- lant. Goldsmith, Atty. Gen.,
Diane G. Asst. (Stephen Baltimore Sachs, Gen., Baltimore, H. Atty. brief), appellee. on for MURPHY, C.J., SMITH, Argued ELDRIDGE, before and COLE, JJ, COUCH, RODOWSKY and JAMES C. MORTON, Jr., Judge Associate of the Court Special of (retired), Appeals Specially Assigned. MURPHY,
Opinion by Judge. Chief case This involves constitutional challenge legal to the sufficiency of form statutory document for theft, crime as authorized by Maryland (1957, Code Repl.Vol.), 27, 344(a). Art.
I By chapter 849 of the Acts of codified as 340- §§ 344 Art. the General Assembly Maryland, effective 1, 1979, July consolidated a number theft-related of (not involving coercion) fenses force or into a single newly created offense known as theft. Section 341 specifies that designated theft” under the “[c]onduct provisions Act’s “constitutes a crime embracing, others, among separate crimes heretofore known as trick, trust, larceny, larceny by larceny embezzlement, after false pretenses, shoplifting, receiving stolen property.” *4 Section 342 enumerates five different types of criminal conduct as theft constituting statute, i.e., (a) under the obtaining exerting control;1 or (b) unauthorized obtaining 342(a) provides person 1. Section that a commits the of offense willfully knowingly "when he or obtains control which is unautho- property rized or exerts control which is unauthorized over of the owner, and: (1) purpose depriving property; Has the of the owner of the or (c) property;3 of stolen deception;2 possession control by lost, (d) mistakenly of mislaid or delivered obtaining control (e) obtaining deception.5 services property;4 uses, conceals, (2) prop- Willfully knowingly or the or abandons property; erty deprive the or in such manner as to the owner of Uses, conceals, use, (3) knowing property the or abandons the concealment, probably deprive the owner of or abandonment will property.” the 342(b) provides 2. Section person the offense that a commits willfully knowingly deception he or uses to obtain and does “when obtain control over owner, property the and: (1) purpose depriving property; or Has the the owner of the uses, conceals, (2) Willfully knowingly prop- or abandons the or erty deprive property; or in such manner as to the owner of the use, Uses, conceals, (3) property knowing or abandons the such concealment, deprive probably will the owner of or abandonment property.” the 342(c) provides 3. Section person that a commits the offense of theft knowing possesses personal property that it has been "if he stolen, stolen stolen, believing probably and: or has been (i) property; purpose depriving or Has the the owner of uses, conceals, (ii) knowingly prop- Willfully or or abandons property; erty deprive of the in such manner as to the owner use, Uses, conceals, (iii) knowing property or abandons the such concealment, probably deprive or abandonment will the owner of property.” 342(d) provides 4. Section person the offense of theft commits property which he knows "when he obtains control over to have been lost or mistake as to the the of another mislaid, under a or to have been delivered identity recipient amount of of the or nature or property if he: knows, (1) identity or is Knows or learns the of the owner of, owner; identifying aware and or learns of a reasonable method (2) property Fails to take reasonable measures to restore owner; (3) purpose depriving permanently Has the owner property property, use or benefit of the either when he obtains the or at time.” later 342(e) person 5. Section provides that a the offense of theft commits only available “when he the services of another which are obtains compensation by: for (1) Deception; or (2) Knowing provided the consent of that the services are without person providing them.” *5 in operative Various of the terms contained the Act are defined with in specificity “deception,” “de- e.g., control,” “obtain,” prive,” “owner,” “exerts “knowingly,” provides and “service.” “property,” Section 341 that the “may proved offense of theft be evidence that it by was in theft committed manner that under' would this subheading, of a notwithstanding specification different indictment, information, warrant, manner in the or other document, charging power to the subject only court to ensure a fair a continuance by granting trial or other if appropriate relief the conduct of the defense would be of fair notice prejudiced by by surprise.” lack Section 344(a) sets approved forth an form of document theft; for the it it provides offense of that shall be “suffi- cient to use a formula substantially following effect: of........,
‘that A—B 19____, on the......day aforesaid, (here County (City) did steal specifying the stolen) C—D, property having services a value of (less or greater) than violation Article $300 342, of the Annotated Maryland; Code of contrary to the form of Act of such case made Assembly and provided, peace, and government dignity ” of the State.’ The Act was Assembly’s drafted General Joint Subcommittee on Theft Related In its Offenses. October 1978 Report, the made clear that it Subcommittee was the purpose statute’s “to eliminate technical and absurd [the] plagued larceny have related offenses distinctions a in the produce^ plethora special provisions criminal 2)”; (p. law that in creating single designated offense “theft,” legislative “that purpose was previously existing larceny-related theft offenses are consolidated into 29)”; this one offense that the (p. possi- consolidation made form, ble the simplified use of a indictment as contained in 344(a), with the result distinctions “[p]etty which formerly provided the basis of and distinct separate crimes (p. 30)”; have been abolished that various subsections of present of circumstances” which constitute “set[s] 31); is a that since theft (p. the offense of encompassed of that offense are aspects offense “and all *6 57)”; ..., (p. need cited only that Section be Section are diversity aspects in of “the wide which view theft, prosecution the crime of the will included within to furnish the defendant with a bill undoubtedly required insuring avoiding a fair trial particulars,” thereby by to lack of fair notice or to the defendant due prejudice 57). (p. surprise
II
April
by
on
the
Appellant Jones was indicted
for
for the crime of theft.
Jury Montgomery County
Grand
pre-
In
the
form of indictment
conformity
with
344(a),
alleged
it was
that Jones
by
scribed
24, 1981,
County,
in
August
Montgomery
“on or about
watch, rings,
did steal a
silver
Maryland, unlawfully
Weinstein,
dollars,
of David
personal property,
and other
($300.00)or
the value of Three Hundred Dollars
having
in
of Article
342 of the
greater,
violation
Section
to
form of the
contrary
Annotated Code of
the
Maryland,
provided,
Act of
in such case made and
and
Assembly
the
of the State.”
against
peace, government
dignity
the indictment. He claimed that
Jones moved to dismiss
failed to
the elements of the
allege
as the State
substantive
indictment,
requisite specific
in
including
offense
statute,
the theft
it
applicable
intent or the
subsection of
him of the
failing
apprise
was
defective for
fatally
charged.
which he was
Jones also
specific offense with
that, theft under
particulars, alleging
demanded a bill of
methods,”
“in
least five major
342 could be committed
at
distinct, requiring separate
separate
each of which was
in his de-
proof.
elements of
Jones asserted
and distinct
for him
particulars
properly plead
mand for
order
provide
must
charge,
to and defend
State
the subsection of
342 under which
particulars indicating
he
charged, together with the manner which was
he was
committed the crime.
alleged to have
dismiss,
Answering
motion to
the State claimed that
full
the indictment was in
compliance “with
statutorily
required charging
Moreover,
for the
language
crime.”
particulars
State declined
supply
sought by Jones.
It
that,
effect,
asserted
Jones
improperly demanding
was
the State’s theory
proof
and its legal
conclusions
requiring that
an
make
election to
prosecute under
342;
specified subsection of
that the facts
contained
the indictment
permit
were sufficient to
to properly
Jones
defend himself and to avoid a second prosecution for the
offense;
same
and that the State had previously provided
open
discovery.
Jones with full
file
The
Court
Montgomery
Circuit
for
County denied the
motion to dismiss. The record does not disclose the court’s
regard
action with
to the bill of particulars but the parties
*7
that
agree
Jones never received the response which he
sought. Jones was convicted of theft by a
jury
appeal
The
of
Special Appeals
unreported
ed.
Court
an
opinion,
relying
its
upon
earlier decision in Whitehead v.
Md.App.
denied,
(1983),
458 A.2d
cert.
III indictment of his theft constitutionality attacks the Jones He asserts arguments. and well-crafted several able elements which com of diversity that because of the wide document charging a the crime of theft under prise specified “did steal” that the defendant merely which states statute does in violation of the of the named victim property him the essential elements of inform of sufficiently not Thus, contends, the he charged.
crime with he is which not in with the constitu compliance document was charging Declaration Maryland standards of Art. tional Amendments to the and the Sixth and Fourteenth Rights Federal Constitution.6 cases, maintains to our Jones
With numerous citations document is to purpose that as the primary of the charges, to fair notice satisfy right the constitutional (a) setting the offense forth its it must characterize (b) of the particu- essential the accused elements advise committed. Neither of these allegedly lar criminal conduct is met says, mandated Jones constitutionally requirements, in the language the offense of theft by charging 344(a). did not specify He the indictment argues property, the victim’s how and with what intent he “stole” him uninformed as to which subsection thereby leaving Thus, he was says Jones allegedly 342 was violated. anticipate required his defense improperly preparing example, for show that he unautho- might, evidence that *8 rizedly: it, intending keep perhaps to property perhaps
“took the (Section then return it temporarily to use it only 342(a)); proper- to that he swindled obtain [the victim] requires prosecutions the accused has 6. Article 21 that in all criminal right against Sixth of the accusation him.” The a “to be informed Amendment, through applicable the Fourteenth Amend- to the states ment, requirement that an accused “be informed contains the similar State, See Thanos v. of the nature and cause of the accusation.” 709, 716, A.2d Pearlman v. 232 Md. Md. 192 A.2d (Section ty 342(b)); he acquired by it altering a label (Section 342(b)); he it possessed knowing it had (Section previously 342(c)); been stolen and that he found it, it knew was point at some intended [the victim’s] keep (Section it permanently 342(d)).” urges Jones that no legislative enactment can sustained which, 344(a), permits with a form of indictment so § give abbreviated as to no indication of the specific character of alleged argues criminal act. He that because crimi- under nality the theft statute may precise turn on the which, by which, means or circumstances the individual effectuates his intent appropriate, the means and circum- stances are themselves essential elements of the crime which must be set forth in the charging document. Jones points out that the “steal” in 344(a) word short form § statute, indictment is not defined nor it is used in 342. He contends that because the word has more than one it meaning, by implication cannot encompass all the essential elements of theft as Nor, delineated 342. he says, 344(a) does a provide document the “defi- nite statement of the essential facts of the offense” re- quired 4-202(a) implementation Md.Rule of the consti- of tutional mandate Art. of the Declaration Rights. Jones 344(a) advances the further a contention that fatally indictment is duplicitous because in a it single count alleges disjunctively many acts, different each being deter- offense, minative the character of the with some acts being incompatible with others. indictment, Such an claimed, is cannot perform its essential constitutional func- tion of informing the the charges accused of him. Moreover, Jones, according to where there is some evidence of both prongs count, a duplicitous general a verdict of guilty would not disclose whether the jury found the ac- other, cused guilty prong, both, under one thereby depriving the accused in a prosecution future ability interpose plea former jeopardy collateral estoppel.
333 IV states, Maryland, in least addition to have thirty-five At pro statutes.7 While the theft-related enacted consolidated state, from to their statutes state vary visions these be, single to create a Maryland, to purpose appears encompassing various common law theft- crime confusing fine- offenses in order to eliminate type particular between forms line common law distinctions provisions virtually enacted larceny. states have Eleven Maryland 341 of the statu contained identical those § 8 223.1(1) conformity with te; they general are § (1962).9 Model Penal Code (1962); (1975); Alaska Stat. 11.46.110 Ariz. § Ala.Code 13A-8-2 §
7. (1947); (Supp.1984); 41-2202 § Ark.Stat.Ann. § Rev.Stat.Ann. 13-1802 (West Supp.1985); Col.Rev.Stat. 18-4-401 § Code 484 § Cal.Penal ; (1985); (1973) 11 tit. Del.Code Ann. tit. § Conn.Gen.Stat. 53a (West (1974); Supp.1985); Ga. 812.014 § 841-859 Fla.Stat.Ann. §§ (1984); Rev.Stat. 708-830 and 708-835 §§ Code Ann. 16-8-2 Hawaii § (1976); (Supp.1984); ch. 16-1 § 18-2401 Ill.Ann.Stat. § Idaho Code (West 1976); (Smith-Iiurd 714.1 Supp.1984-1985); Code Ann. § Iowa (1981); Ky.Rev.Stat.Ann. 21-3701 to 21-3704 Kan.Stat.Ann. §§ 514.120; (West 1981); 14:67 Me.Rev. § 514.010 to La.Rev.Stat.Ann. §§ 17-A, (1964); (Law. Mass.Ann.Laws ch. 30§ Stat.Ann. § tit. (West 1963); Co-op.1980); Mo. Minn.Stat.Ann. 609.52 609.55 §§ 1985); (Supp. Ann. 45-6- § Ann.Stat. Vernon Mont.Code § 570.030 (1979); (1979); N.H.Rev.Stat.Ann. 637:1 § § 301 (1974) Neb.Rev.Stat. 28-510 ; (West 1978); N.J N.Y.Penal Law art. 155 .Stat.Ann. 2C:20-2 § (1976); (1984); Ohio Rev.Code Ann. N.D.Cent.Code 12.1-23-01 § (1983); 1982); (Page 164.015 164.025 §§ 2913.02 Or.Rev.Stat. § (Purdon (1972); S.D. Codified Laws § Pa.Cons.Stat.Ann. tit. (Vernon (1979); § tit. 22 Tex.Penal Code Ann. 31.02 Ann. 30A-15 1980); Wash.Rev.Code 9A.56.- Code Ann. 76-6-403 Utah (West 1981). (1983); Wis.Stat.Ann. 943.20 Idaho, Maine, Nebraska, Alaska, Arkansas, Hampshire, New New 8. Dakota, Pennsylvania, Jersey, Oregon, and Utah. South "(1) Conduct denominated theft Consolidation 9. of Theft Offenses. An of theft this constitutes a offense. accusation in may Article by was supported be that it committed manner evidence Article, notwithstanding specifica- that would be theft under this information, subject of a in the indictment or tion only different manner granting trial power Court to ensure fair appropriate relief where the conduct of the continuance or other by surprise.” prejudiced by notice or defense lack fair would
The cases indicate that an indictment or information
single
the
consolidated offense need not
the
aver
particular manner or means
which
the crime was com-
statute,
merges
mitted. The Massachusetts
for example,
larceny,
obtaining money
embezzlement and
or property by
false
crime
pretenses
single
into the
of
larceny
provides
the
an indictment for
consolidated
shall be
offense
alleges
sufficient if it
that the defendant
desig-
“stole” the
of another. The
property
court,
nated
Massachusetts
Kelley,
320,
v.
184 Mass.
Commonwealth
“a term of
and includes the criminal
taking
conver-
sion in either of the three ways above-named; and hence
sustained,
the indictment is
so far as respects the criminal
of
conversion,
nature
the
taking
by proof of
kind
any
embezzlement,
of larceny,
or criminal
of
taking by means
false
If it be
pretenses.
objected that this construction
the
so indefinite
makes
indictment
that the accused is not
of
sufficiently
charge
informed
the nature of the
which
meet,
he is called
the answer
is
upon
provided
is that it
in the same statute that ‘the court may, upon
arraign-
defendant,
ment
or at
later
stage of the
proceedings,
prosecution
order the
to file a
statement
may
such
particulars
necessary
give
defend-
ant and the court reasonable
knowledge
the nature and
accusation____”
grounds
the’
Under
consolidated theft
an indict-
charges
ment which
the defendant with having “knowingly,
“theft,”
unlawfully
feloniously”
committed
the crime
delineating
without
particular way or manner which
committed,
the theft was
was upheld against attack on the
state
in-
ground
constitutional
accused was not
formed of the nature and
cause
accusation. See
Jim,
Or.App.
(1973)
State v.
Y *12 A primary purpose to be fulfilled aby charging document under Maryland law is to satisfy the constitution requirement al of Article 21 of the of Rights Declaration person each charged awith crime informed of the be him, first, accusation by characterizing the crime and, second, so describing inform the accused of specific conduct is charged. with which he Williams v. State, 787, 302 Md. (1985); 490 A.2d Morton, 1277 v. State 487, (1983); 295 Md. 456 State, A.2d 909 v. Ayre 291 Md. 155, (1981). A.2d 433 1150 The common rule in Mary law land, in applicable involving cases short form indictments, is that charging a document must allege
337
essential
charged.10
elements of the offense
Robinson v.
State,
193,
298 Md.
(1983);
In
458
Md.App.
A.2d 905
(1983),
Court of Special Appeals
the
considered the legality
of a
indictment
by 344(a), i.e.,
theft
in the form authorized
it
the defendant
charged
unlawfully stealing
specifi
with
cally-déscribed car of a named victim of a value greater
than
in violation
342. It was
alleged
there
that
$300
charged
the indictment
the accused
five
with
different
offenses;
criminal
that
it failed to
the
allege
essential
the
charged;
consequence
elements of
offense
that as a
satisfy
failed to
requirements
Art. 21
the Mary
land
of Rights
Declaration
“because it was insufficient to
offense,
charge
accused
an
him
give
information
[the
with]
prepare
defense,
to enable him
his
necessary
and to
him from
protect
future
for the same
prosecution
offense.”
at
Md.App.
We well views White question head. The us is before whether the indictment is deficient, constitutionally whether it have charged not could greater offense with think particularity. We the un specified theft, elements of the crime of as enumerated in
339 342, implied are of the short form words The sufficiently by indictment. offense is characterized 344(a); verbiage of it contains those essential allegations, expressly impliedly, necessary either to advise the ac cused of the criminal conduct particular allegedly commit ted. that Accordingly, we conclude the short form indict ment did not violate Jones’ constitutional ei rights under ther the state or federal constitutions.11
It is
evident from the
of the
readily
language
consolidated
statute,
and from its underlying history,
that
legislature
“stealing” property
made
services
another
designated
of a
value
criminal offense. Consistent
law,
Maryland
with
the legislatively approved indictment
require
express
form does not
an
recital of the manner or
offense;
means of
committing
information,
that
if not
provided
otherwise
by
prosecutor, was deemed obtain-
through a
of particulars.
able
bill
sufficiency
11. The constitutional
of an indictment
for sixth amend-
Hagner
purposes,
by
v. United
Supreme
ment
as stated
Court
States,
427,
417,
(1932),
U.S.
52 S.Ct.
In this
in Whitehead,
unlike
no bill of particu
provided
lars was
to the accused even
one
though
was
requested. With
file
open
discovery methods now being
utilized by many prosecutors, the need for a
particu
bill of
lars in theft
indictments has undoubtedly been greatly
Nevertheless,
reduced.
in view of the statute’s history,
where such a
requested,
bill is
though
even
open file
discovery is permitted and completed,
the trial
judge
12.
White,
(Mo.1968)
The cases are State v.
Nor is there merit in Jones’ claim that the indict
charging
ment
more than one offense in
duplicitous
was
incapable
performing
the same count and thus
its consti
informing
charges
tutional function of
the accused of the
effect,
charged
him.
In
the indictment
single
crime of theft
rather than
conjunctively,
disjunctively, by
methods;
or all of five different
the offense could
any
under the
evidence that it
proved
provisions
committed in
manner that
constitute
any
was
would
under
342. It
held that
a
has been
where
statute forbids
acts
doing
conjunctively,
several
in a
count
alleging
document
more than one act
is not
duplicitous.
Thanos v.
282 Md.
387 A.2d
See
*16
(1978);
State,
302,
286
Bonneville v.
206 Md.
As
342
the
comprises
single crime of
Jones
protected
prosecution
is
from further
for
the
stealing
prop
in
erty particularized
Consequently,
the indictment.
the
State cannot
him for another
342
retry
violation
with
regard to the same
the
property.
attempt
Should
State
prosecution,
second
Jones could
retrial
effectively
by
bar
producing the indictment and verdict in his first trial.
simply
Morton,
494,
909;
JUDGMENT COSTS.
342
COLE, Judge, concurring. I concur in on ground the result the narrow that the charging form the set for offense forth in (1957, Repl.Vol.), 27, 344(a) Art. Md.Code 1982 satisfies the requirements constitutional notice embodied Article not, 21 of the Maryland Rights. Declaration of I do how- ever, the reasoning employed by subscribe to the Court in reason, its For I reaching conclusion. this write separately. In late to campaign reject its to the suffi- challenges documents, Court, ciency charging my the judgment, effectively ignored has constitutional of a right defend- ant to be informed of the accusation him. Williams 794, 1277, State, 787, (1985) (Cole, v. Md. 490 A.2d J., State, 809, dissenting); 806, v. 302 Md. Hall 490 A.2d J., (1985) (Cole, dissenting). organic This consti- requirement, tutional contained in both Article and the sixth and fourteenth amendments federal Constitu- tion, in part put serves to the defendant on notice of what he upon is called to characterizing defend and describing crime, protect to the defendant from future prose- State, cution for same crime. See 291 Md. Ayre A.2d To better understand what case, is and what is not involved in this necessary is contrast Williams v. the instant case. supra, The document purported charge Williams common law offense armed robbery by averring that personal defendant “did rob” the victim of certain that property. Although charging document omitted the offense, essential mental element of that despite comply State’s failure to with the form statutory short for that common law offense under 489 of Art. majority nonetheless found that Williams indict- ment passed constitutional muster. The Williams Court based this on the theory conclusion the “common parlance” inferentially of “did supplied rob” the missing mental element for armed In robbery. doing, so majori- *17 in case ty by judicial fiat emasculated the constitutional I continue analysis. reasoned with no requirements notice Williams, in do so in I but expressed to the views to adhere markedly differs the case sub recognition judice in from that Williams. in robbery offense of armed the common law
Unlike
of theft.
offense
Williams,
this case involves
com-
1978,
consolidated various
Assembly
In
the General
offense
offenses into a
mon
related
larceny
law
849; see also
theft.
1978 Md.Laws
designated as
See
483,
145-46,
485-86
482 A.2d
301 Md.
Sibert
statute).
purpose
One
(1984) (discussing consolidated
“[p]etty
distinctions
this
was to abolish
consolidation
and distinct
separate
the basis of
formerly provided
which
simplified charg-
could use the
so that prosecutors
crimes”
344(a)
of Art. 27. See
document form contained
ing
Laws
Laws and Bad Check
Maryland
Revision of
Theft
(Joint
Subcommit-
Md.Spec.Rpts.
ch. 849 of Acts of
1978)
cited
tee on Theft Related Offenses Oct.
[hereinafter
simplified
provides:
This
form
as Maryland Revision].
warrant,
(a) Indictment,
or other
information,
indictment,
information,
document.—In
charging
warrant,
for theft it is suffi-
or other
document
following
substantially
cient to use a formula
.........,
day
effect:
A—B on the ......
“that
(here
aforesaid,
19____, in
did steal
County (City)
stolen) C—D,
or services
hav-
specifying
property
(less
greater)
violation
ing a value of
than $300
Maryland;
the Annotated Code of
Article
of the Act of
such case
contrary
Assembly
to the form
government
provided,
peace,
made and
of the State.”
dignity
view,
“did steal”
In
the averment that the defendant
my
of 342
of the named victim violation
specified property
defendant of the essen-
sufficiently
of Art. 27
informs the
of the crime with which he is
tial or material elements
change
Assembly
The
is authorized
charged.
General
most conducive to
may
the common law as it
think
abrogate
welfare,
not in the
run
general
provided
process
it does
*18
afoul
federal
state constitutions. See Attorney
Johnson,
274, 282,
57, 62,
General v.
Md.
A.2d
appeal dismissed,
439 U.S.
99 S.Ct.