Jurisdictional Statement — Allnutt v. Maryland

Office - Supreme Court, U.S.

84-1380 © FILED

MAR 1 1985

AKEXANOER L. STEVAS.

Le

IN THE

SUPREME COURT

OF THE

UNITED STATES

October Term, 1984

No.

FRED W. ALLNUTT, SR., Appellant

v.

_ STATE OF MARYLAND, Appellee

ON APPEAL FROM THE COURT OF APPEALS

OF MARYLAND

JURISDICTIONAL STATEMENT

James L. Mayer

Susan S. James

8293 Main Street

Ellicott City, Maryland 21043

(301) 465-6060

Counsel for Appellant

QUESTIONS PRESENTED

Whether under Article I, Section 10 of

the Constitution of the United States “ne

State can require payment of taxes in ‘rre-

deemable Federal Reserve notes where such

taxes are "debts" as defined by State statu-

tes.

TABLE OF CONTENTS

Page

Questions Presented... cece eeeeeeececcveel

Table of AUthOritieS....ccceccceeccccvsceeel

Opinion BelOW. .ccccccccccccccccccccccsessecd

Grounds of Jurisdiction of Supreme Court..3

Constitutional Provisions and Statutes....4

Statement Of the Case... cccccccccccccccceed

Substantiality of Federal Questions.......ll

Appendix:

A. Opinion of the Maryland Court of

BHOSCIAL AMMEALSecccccccccccccccccccccscccohed

B. Order of the Maryland Court of

/\. VY PAP rrrereerereereeeeeereererererrs. CT

C. Notice of Appeal to Supreme Court of

United States. ieee thedeawes bob e6 ens 6s oem

ii

TABLE OF AUTHORITIES

Cases Page

Julliard v. Greenman, 110 U.S. 421

CIGD) 506 0656660660666 66046666666066860008R

Knox v. Lee, 79 U.S. (12 Wall.) 457

CET OD 6 06 6 0660 0 66466680b66600060660608600808

Norman v. Baltimore and Ohio Railroad,

294 U.S. 240 (1935) ccccccccccccccccccccdl

Statutes

Title 31, U.S.C.A. § Bll. ccccccccccee -4,9,11

Title 31, U.S.C.A. § 405a3......2.222-5,9,11

Title 31, U.S.C.A. § 408a......000006-5,9e,11

Title 31, U.S.C.A. § 463 .cccccccccccesd e659

Maryland Annotated Code, Article 81,

Section 317 ..ccccccccces coccces 002000 e649

Maryland Annotated Code, Article 8l,

SECTION 320. .ccccccccccccccccccccccccOgs10,14

Maryland Annotated Code, Article 8l,

Section 342(8) .cccccccccccccccccces oools9

Maryland Annotated Code, Article 8l,

SECtion 344 ..ccccccccccccccccsccceces --7,8,10,14

Constitution of the United States

Asticl® I, SOSGtiaR Lbcccscccvose 0066600 6nenene

10,14

-j-

OPINION BELOW

The Opinion of the Maryland Court of

Special Appeals appears in 59 Md. App. 694,

478 A.2d 321 (1984), and is included herein

as Appendix A (pp A.1-17).

GROUNDS OF JURISDICTION OF SUPREME COURT

This appeal arises from an action

charging Appellant with nine counts of wilful

“ailure to file retail sales tax returns,

wilful failure to pay retail sales tax and

wilful failure to file a Maryland income tax

return. A jury verdict of guilty on all

counts was rendered on June 16, 1983 in the

Circuit Court for Howard County. A timely

order of appeal to the Court of Special

Appeals of Maryland was filed on September

23, 1983. The Mandate was issued on August

16, 1984 and Appellant timely filed e

Petition for Certiorari to the Court of

Appeals of Maryland on August 30, 1984.

Certiorari was denied by Order dated December

4, 1984.

A timely notice of appeal was filed on

February 5, 1985 in the Maryland Court of

Appeals. The jurisdiction of this Court is

invoked under the provisions of Title 28,

United States Code, Section 1257, sub-

paragraph (2).

=3-

CONSTITUTIONAL PROVISIONS AND STATUTES

Constitution of the United States, Article l,

Section 10, Clause l:

No State shall enter into any Treaty,

Alliance, or Confederation; grant Letters of

Marque or Reprisal; coin Money; emit Bills of

Credit; make any Thing but gold and silver

Coin a Tender in Payment of Debts, pass any

Bill of Attainder, ex post facto Law, or Law

impairing the Obligation of Contracts, or

grant any Title of Nobility.

STATUTES

Title 31, U.S.C.A. Section 31ll

It is declared to be the policy of the

United States to continue the use of both

gold and silver as standard money, and to coin

both gold and silver into money of equal

intrinsic and exchangeable value, such

equality to be secured through international

agreement, or by such safeguards of legisla-

tion as will insure the maintenance of the

parity in value of the coins of the two

metals, and the equal power of every dollar

at all times in the markets and in the

payment of debts. And it is further declared

that the efforts of the Government should be

Steadily directed to the establishment of

such a safe system of bimetallism as will

Maintain at all times the equal power of

every dollar coined or issued by the United

States, in the markets and in the payment of

debts. And it is further declared that the

efforts of the Government should be steadily

directed to the establishment of such a safe

system of bimetallism as will maintain at all

times the equal power of every dollar coined

or issued by the United States, in the

markets and in the payment of debts.

~4-

Title 31, U.S.C.A. 405 a-3

Silver certificates shall be exchangeable

for silver bullion for one year following

June 24, 1967. Thereafter they shall no

longer be redeemable in silver but shall be

redeemable from any moneys in the general

fund of the Treasury not otherwise

appropriated.

Title 31 U.S.C.A. Section 408a

Except to the extent permitted in regula-

tions which may be issued hereunder by the

Secretary of the Treasury with the approval

of the President, no currency of the United

States shall be redeemed in gold: Provided,

however, That gold certificates owned by the

Federal Reserve banks shall be redeemed at

such times and in such amounts as, in the,

judgment of the Secretary of the Treasury,

are necessary to maintain the equal

purchasing power of every kind of currency of

the United States: And provided further,

That the security for gold certificates

(including the gold certificates held in the

Treasury for credits payable therein) shall

be maintained in gold bullion equal to the

dollar amounts required by law.

No redemptions in gold shall be made

except in gold bullion bearing the stamp of a

United States mint or assay office in an

amount equivalent at the time of redemption

to the currency surrendered for such purpose.

Title 31, U.S.C.A. Section 463

(a) Every provision contained in or made

with respect to any obligation which purports

to give the obligee a right to require

payment in gold or a particular kind of coin

Or currency, or in an amount in money of the

United States measured thereby, is declared

to be against public policy; and no such pro-

vison shall be contained in or made with

respect to any obligation hereafter incurred.

oSe

Every obligation, heretofore or hereafter

incurred, whether or not any such provision

is contained therein or made with respect

thereto, shall be discharged upon payment,

dollar for dollar, in any coin or currecny

which at the time of payment is legal tender

for public and private debts. Any such pro-

vision contained in any law authorizing obli-

gations to be issued by or under authority of

the United States, is hereby repealed, but

the repeal of any such provision shall not

invalidate any other provision or authority

contained in such law.

(b) As used in this section, the term

"obligation" means an obligation (including

every obligation of and to the United States,

excepting currency) payable in money of the

United States; and the term ‘coin or curren-

cy' means coin or currency of the United

States, including Federal Reserve notes and

circulating notes of Federal Reserve banks

and national banking association.

Maryland Annotated Code, Article 81,

~ Section 317

Every tax imposed by this subtitle, and

all increases, interest and penalties

thereon, shall become, from the time it is

due and payable, a personal debt, from the

person or persons liable to pay the same to

this State, and shall be entitled to the same

priority and collectible in the same manner

as other State taxes are preferred and

collectible under the provisions of this

article.

Maryland Annotated Code, Article 8l,

Section 320

The failure on the part of any person or

taxpayer to file a return or report as

required by the provisions of this subtitle,

or to comply with any action taken by the

Comptroller pursuant to § 304 hereof shall be

deemed a violation of the provisions of this

=6-

subtitle subject to penalty and interest as

prescribed in § 318 hereof. The wilful

failure on the part of any person or taxpayer

to file a return or a report as required by

the provisions of this subtitle or to comply

with any action taken by the comptroller pur-

suant to § 304 hereof shall be a misdemeanor,

subject to a fine of not exceeding $1,000 or

imprisonment for not exceeding 1 year, or

both, in the discretion of the court.

Maryland Annotated Code, Article 81,

Section 342(a)

(a) Personal debt; limitation of

actions. The tax imposed by this subtitle

and all increases, interests and penalties

thereon shall become, from the time due and

payable, a personal debt of the person liable

to pay the same to the State of Maryland. An

action may be brought at any time within four

(4) years from the time the tax shall be due

and payable by the Comptroller in the name of

the State to recover the amount of any taxes,

penalties and interest due under the provi-

sions of this subtitle, but if there is proof

of fraud or gross negligence, there shall be

no limitation of the period in which the

action may be brought. Proof of negligence

amounting to twenty-five percent (25%) or

more of the tax due shall be prima facie

evidence of gross negligence.

Maryland Annotated Code, Article 8l,

Section 344

(a) Penalty for failure to file return

and pay tax when due. - If a taxpayer fails

to file any return or pay the tax when due as

required by this subtitle, there shall be

assessed agaisnt him, in addition to the tax

due, a penalty of 10 percent of the tax due,

Jeo

plus interest at the rate determined under

§ 204 of this article from the time the tax

was due until paid. Whenever any person

fails to file a return with 10 days of notice

or demand by the Comptroller, the Comptroller

shall compute the tax from the best infor-

mation available, which determination shall

be prima facie correct.

(b) Fraud. - If the failure to file any

return is due to an attempt to defraud, then

the penalty shall be, in lieu of the penalty

more specifically provided for by subsection

(a) of this section, 100 percent of the tax

due, plus interest at the rate determined

under § 204 of this article from the time the

tax was due until paid.

STATEMENT OF THE CASE

The facts of the case underlying this

appeal are as follows:

Appellant, an excavating contractor, did

not file a 1981 income tax return nor did he

file sales tax returns and pay the sales tax

due the State. At trial, the issues raised

in Appellant's defense related to the

guestion of wilfulness and the ability of the

State to require payment of taxes in irre-

deemable paper money where State statutes

define taxes as “debts.” (Maryland Annotated

Code, Article 81, §§317,342).

Much of the testimony at trial concerned

conflicting federal statutes relating to

money, such as Title 31, U.S.C.A., Section

311 and Title 31, U.S.C.A., Sections 405a-3,

408a, and 463. Further testimony concerned

the relation of Article I, Section 10 of the

U.S. Constitution to Maryland statutes

defining taxes as "debts." The evidence in

Appellant's case showed that his review of

-9-

the conflicting statutes and the Constitution

raised questions in his mind concerning his

legal duty and the power of the State to

require payment of taxes in irredeemable

Federal Reserve notes.

The trial judge refused to instruct the

jury on the applicable federal and state sta-

tutes or on the U.S. Constitution. Rather,

the jury was instructed that the law was

clear and Appellant was subsequently found

guilty of wilful failure to file returns and

pay taxes under Maryland Annotated Code,

Article 81, §320 and §344.

The Court of Special Appeals affirmed the

convictions and held that Article I, Section

10 bars the State, but not the Congress, from

declaring legal tender to be anything other

than gold or silver. (A.9)

-10-

SUBSTANTIALITY OF FEDERAL QUESTIONS

This appeal presents important and

substantial questions in that this Court has

not ruled on the issue of payment of taxes in

paper money since the so called "Legal Tender

Cases," notably Juilliard v. Greenman, 110

U.S. 421 (1884), and the "Gold Clause Cases”

such as Norman v. Baltimore and Ohio

Railroad, 294 U.S. 240 (1935). Even as of

the date of the ruling in Norman, the

expressed policy of the United States was to

continue the use of both gold and silver as

standard money, to coin both gold and silver

into money of equal intrinsic value and to

maintain the parity in value of coins of the

two metals and the equal power of each dollar

in the markets. Acts of 1 November, 1893,

Ch. 8., 28 Stat. 4, then 31 U.S.C. Sec. 3l1l.

Since those rulings, Federal Reserve notes

were declared by Congress in 1967 to be irre-

deemable in either gold or silver. (31 U.S.C.

§§405a-3, 408a).

ati~\

As this Court said in another "Legal

Tender”™ case, Knox v. Lee, 79 U.S. (12 Wall.)

457 (1870):

[t]he legal tender acts [of 1862 and

1863] do not attempt to make paper a

standard of value. We do not rest their

validity upon the assertion that their

emission is coinage, or any regulation of

the value of money; nor do we assert that

Congress may make anything which has no

value money. What we do assert is, that

Congress has power to enact that the

government's promise to pay money shall

be, for the time being, equivalent in

value to the representative of value

determined by the coinage acts, or to

multiples thereof. *** It is, then, a

mistake to regard the legal tender acts

as either fixing a standard of value or

regulating money values, or making that

money which has no intrinsic value. Id.

at $32.

Justice Bradley in his concurring opinion

in Knox emphasized that the power to make

United States Notes legal tender:

is entirely distinct from that of coining

money and regulating the value

thereof.*** It is not an attempt to coin

money out of a valueless material, like

the coinage of leather or ivory or kowrie

shells. It is a pledge of the national

credit. It is a promise by the govern-

ment to pay dollars; it is not an attempt

to make dollars. The standard of value

is not changed.***

-12-

No one supposes that these government

certificates are never to be paid--that

the day of specie payments is never to

return. *** And their payment may not be

made directly in coin, but they be first

convertible into government bonds, or

other government securities.’ Through

whatever changes they pass, their ulti-

mate destiny is to be paid.

So. with the power of government to borrow

money, *** when exercised in the form of

legal tender notes or bills of credit, it

may operate for the time being to compel

the creditor to receive the credit of the

government in place of the gold which he

expected to receive from his debtor. Id.

at 560, 561-562, 565.

Since 1967, irredeemable Federal Reserve

notes are "never to be paid," have no intrin-

sic value and constitute merely an empty pro-

mise to pay. At the present time, there is,

in fact, nothing of intrinsic which value the

government has to pay or make good on such

promise.

This Court must review the issues pre-

sented herein in light of Congressional

legislative changes since this Court last

directly addressed such issues.

=] 3-

In this case, the Maryland State statutes

define taxes as “debts.” At trial, an expert

witness testified that Maryland is one of the

few states where taxes are so defined and

that Article I, Section 10 is thus directly

and literally applicable. Yet, Maryland

Annotated Code, Article 81, §§320, 344 allow

the State to prosecute a taxpayer for wilful

failure to pay. The criminal prosecution of

the taxpayer for refusing to pay in irre-

deemable paper money is, then, a violation of

Article I, Section 10 of the Constitution of

the United States. The State is constitu-

tionally forbidden to require such payment.

Therefore, the lower court's ruling which

affirmed Appellant's convictions must be

reversed.

For the reasons stated above, Appellant

submits that this appeal brings before the

court substantial and important federal

questions which require plenary con-

sideration, with briefs on the merits and

Oral argument, for their resolution.

Dated: , 1985

Respectfully submitted,

ames L. Mayer

Susan S. James

Attorneys for Appellant

ee eee

|

REPORTED IN

THE COURT OF SPECIAL APPEALS OF MARYLAND

No. 1558

September Term, 1983

FRED W. LNUTT, SR.

STATE OF MARYLAND

Gilbert, C.J.

re tty

Bell,

Opinion by Gilbert, C.J.

Filed: July 17, 1984

The State believes that it has the

right to require that taxes be paid in the

generally accepted United States currency —

Federal Reserve Notes. Fred W. Allnutt, Sr.,

a Maryland resident, thinks the State may not

collect taxes except in gold or silver specie.

Allnutt reasons that since that form of cur-

rency does not exist, taxes, while due, can-

not be constitutionally paid.

A twelve person jury in the Circuit Court

for Howard County obviously accepted the

State's view, because they convicted Allnutt

of nine counts of wilfully failing to file re-

tail sales tax returns as well as wilfully

failing to pay sales tax. Additionally, All-

nutt was convicted of wilfully failing to

file a 1981 State income tax return.

Judge Guy J. Cicine sentenced Allnutt to

one and one-half years imprisonment, and also

imposed a fine. The prison term was suspended

A. 2

and Allnutt was placed on probation for a per-

iod of five years, but only the first year of

the probation is to be supervised.

In this Court Allnutt asserts:

1) the trial judge erred in refusing to

give the jury a requested instruction;

2) the trial judge erred in instructing

the jury that it was only to judge the

facts of the case; and

3) there was not sufficient evidence with

which to convict Allnutt of wilful

failure to file tax returns and pay

sales taxes.

Allnutt is a successful excavating con-

tractor who admitted he did not file a 1981 in-

come tax return, despite a gross income in ex-

cess of $400,000.00 for that year. Addition-

ally, Allnutt acknowledges that he neither

filed sales tax returns nor did he pay the sales

tax that was due the State. In defense of

those delinquencies, he contends that the Con-

stitution of the United States precludes the

State from collecting payment of taxes other

than in gold or silver specie.

Allnutt reads and interprets Article i,

A. 3

810 of the Federal Constitution as prohib-

iting the State from collecting monies in

other than the "coin of the relm," i.e., gold

t He seems to imply that if the

or silver.

Congress authorizes gold and silver as specie,

he would have no trouble paying taxes. As

Matters now stand, he cannot so pay because

he believes Federal Reserve Notes are not re-

deemable legal currency.

Provocation for Allnutt's eventual chal-

lenge to the Maryland tax statute is attribut-

ed to an incident Allnutt had with the Retail

Sales Tax Division of the State Comptroller's

Office. In response to whatever occurred,

larticle 1, 810 of the Federal Constitu-

tion states in pertinent part: "No State shall

».emake any Thing but gold and silver Coin a

Tender in Payment of Debts...”

<the record reflects the existence of the

incident but fails to state its nature or es-

sence.

——errr

Allnutt undertook a researching task that led

him to

think that the State of Maryland had no

legal right to demand tax payments in dollars.

He wrote to the Maryland Attorney General and

to the

cation.

Retail Sales Tax Division for clarifi-

His letters said, in part:

"One, is Article 1, 810 (of the U.S.

Constitution) still binding on the

State of Maryland? Two, if Article i,

610 is still binding can each citizen

be enforced to pay his or her debts

in present Federal Reserve Notes if

they are objected to? Three, am I

correct in my understanding that gold

and silver are declared as the money

of account, of the United States, that

Maryland must conform to, that Title

31, 8371 of the United States Code?”

Allnutt's letters went unanswered. He

misinterpreted the non response as acquies-

ence in his belief that he did not have to

pay taxes. Allnutt testified:

"(M)y studies...-led me to believe that

the gold and silver monetary system

was the only lawful monetary system

for which to pay taxes. I have studied

»eethe meaning of a dollar and the

meaning of a dollar sign. In review-

ing these forms they did not say on

there to compute the tax in Federal

A. 5

Reserve Notes or obligations of the United

tates. They said to compute it in dollars.

I was confused as to, in how to do that.”

The jury, as we have seen, was not con-

fused; it found Allnutt guilty of all ten

charges.

I.

Allnutt contends that it was error for

Judge Cicone to refuse to instruct the jury

regarding the miscellaneous federal statutes

and constitutional provisions which led to

3

Allinutt's "confusion." Those instructions,

as the State elucidates, would have required

the jury to determine, in light of the "con-

fusing" federal law, whether Allnutt's actions

were "wilful." Instead of giving the re-

quested instruction, Judge Cicine told the

jury:

"Since each act is required to be wil-

ful I...advise you that the defendant's

Aspecifically, Allnutt requested in-

structions as to the requirements of Article

1, 810 of the U.S. Constitution as well as the

following federal statutes: 31 U.S.C. 311, 31

U.S.C. 371, 31 U.S.C. 4051-3, 31 U.S.C. 408a,

12 U.S.C. 44, 31 U.S.C. 742. In addition, All-

nutt asked that the jury be instructed with

respect +o Md. Ann. Code Art. 81, 88 280(c)(1),

A. 6

conduct is not wilful if he acted

through negligence, inadvertence or

mistake, or due to his good faith,

or misunderstanding of the requirements

of the law. It should be pointed out,

however, that a defendant's disagreement

with the law, no matter how earnestly

held, does not constitute a defense of

good faith, misunderstanding, or mis-

take. It is the duty of all citizens

to obey the law, whether they agree

with it or not. One of the elements

of the crimes charged...is wilful fail-

ure to file a return or pay a tax. Wil-

fulness may be established through proof,

that Mr. Alinutt's failure...constituted

a voluntary intentional violation of a

known legal duty. In other words, the

State must prove that Mr. Allinutt must

have known clearly and without a doubt,

that he had a legal duty which was clear-

ly stated to him, to file the return

demanded by the State or pay the tax in

order for the element of wilfulness to

be proven by the State. Before wilful-

ness can be found, a clear legal duty

must first be found.” (Emphasis sup-

plied.)

The emphasized portion of the instruct-

ion is a mirror image of the language used by

Chief Judge Murphy for the Court of Appeals

in Johnson v. State, 294 Md. 515, 451 A.2d

330 (1982), to define “wilful” as used in

F(cont.) 294(a)(2), 294(a)(3), 317, and 342.

A. 7

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the State income tax law.’ He wrote that,

“wilfulness may be established through proof

that the accused‘’s failure to file constituted

a voluntary intentional violation of a known

legal duty, not the result of accident or

mistake or other innocent cause." 294 Md. at

518-19.

Judge Cicone‘s instructions to the jury

adequately embraced established law and care-

fully tracked Johnson, supra. There was no

error.

Ii.

Allinutt further faults the trial judge's

instruction to the jury that, "In the present

case, the law which is to be applied, is clear

and thus you should only act as judge of

the facts.”

“chief Judge Murphy was referring spe-

cifically to Md. Ann. Code Art. 81, 8 320.

In furtherance of his argument with

regard to the jury's being the judge of the

law and fact, Allnutt realleges his asser-

tions that Federal Reserve Notes are not

legal tender and, therefore, his obligations

under the law were unclear. We observe that

the Eighth Circuit has twice declared Federal

Reserve Notes to be taxable dollars. United

States v. Rifen, 577 F. 2d 1111 (8th Cir.

1978) and United States v. Daly, 481 F.2d 28

(8th Cir. 1973), cert. denied, 414 U.S. 1064

(1973). We share the Eighth Circuit's view.

It is apparent to us that Allnutt

misreads Article 1, §10 of the U.S.

Constitution. The section prohibits the

States from declaring legal tender to ”

anything other than gold or silver, but that

constitutional barrier does not extend to the

Congress. It is free to declare what consti-

tutes legal tender for the payment of taxes

and other debts. Juilliard v. Greenman

[Legal Tender Case], 110 U.S. 421, 446, 4

S.Ct. 122, 28 L.Ed. 204 (1884); Veazie Bank

v. Fenno, 75 U.S. 533, 548 (8 Wall. 533), 19

L.Ed. 482 (1869).

The Congress, through 31 U.S.C. 392, has

specifically said that Federal Reserve Notes

"shall be legal tender for all debts, public

and private, public charges, taxes, duties and

dues." See Solyom v. Md.-Nat'l Cap. P. & P.

Comm'n, 53 Md. App. 280, 284, 452 A.2d 1283

(1982); United States v. Rifen, supra;

Chermack v. Bjornson, 302 Minn. 213, 223 N.W.

2g 659, 661 (1974), cert. denied, 421 U.S.

915 (1975).

Allnutt's attack upon the federal law is

at best a red herring dragged across the

trail to throw off the hounds in pursuit of

the fox.

Having determined that Allnutt's duty to

pay taxes in Federal Reserve Notes was clear,

we return whence we started our discussion on

this issue, namely, the jury's being the

judge of fact, not of the law.

Maryland is one of the two States 5 in

the nation which provides, constitutionally,

that juries in criminal cases are judges of

5 Indiana is the other State.

Constitution of the State of Indiana, Article

1, $ 19.

A.10

the law as well as of the fact. Article 23

of the Declaration of Rights to the Maryland

constitution provides, in pertinent part:

"In the trial of all criminal cases, the

Jury shall be the Judges of law, as well

as of fact, except that the Court may

pass upon the sufficiency of the evidence

to sustain a conviction." (Emphasis

supplied.)

The predecessor of the italicized portion

of that particular fiat was first incor-

porated in the Maryland Constitution of 185l.

The clause pertaining to sufficiency of the

evidence was not added until one hundred

years later when Laws 1949, ch. 407 was

ratified by the electorate on November 7,

1950.

Until Stevenson v. State, 289 Md. 167,

179, 423 A.2d 558, was decided on December

17, 1980, it was generally believed by bench

and bar that a judge's comments as to the law

in a criminal case were advisory and not

binding on the jury. A jury - twelve lay

persons - was to determine not only the evi-

dence but the law of the case. The jury was

not free, however, to disregard existing law

or to enact new law, nor was it permitted to

A.1l

decide helter skelter what the law should be

rather than what it was. Hamilton v. State,

12 Md. App. 91, 277 A.2d 460 (1971), aff'd

265 Md. 256, 288 A.2d 885, cert. denied, 409

U.S. 1006, 93 S.Ct. 445, 34 L.Ed. 2d 298

(1972). Notwithstanding the jury's being

judges of the law, it was not permitted to

pass upon the constitutionality of a statute.

Giles v. State, 229 Md. 370, 183 A.2d 359

(1962); Franklin v. State, 12 Md. 236 (1858).

More often than not, we surmise, the jury

followed the judge's advisory instruction

because the jurors, as lay persons, would not

usually be familiar with the intricacies of

law. Stevenson temporarily muddied the

waters; what had been clear became murky.

Stevenson told us that a jury's judicial role

was limited to the "law of the crime" and

"that all other legal issues are for the

judges alone to decide." Stevenson v. State,

289 Md. at 166. Confusion then arose as to

what was meant by the term "law of the

crime."

One year later the Court in Montgomery v.

State, 292 Md. 84, 437 A.2d 654 (1981),

sought to still the roiling waters by expli-

cating Stevenson. The message of Montgomery

is that Article z3 of the Maryland

Declaration of Rights and Md. Rule 757 b, 6

which provides much the same thing, are

"limited to those instances when the jury is

the final arbiter of the law of the crime";

that is to say where there is a dispute as to

the state of the law. "[W]Jhere there is no

dispute nor a sound basis for a dispute as to

the law of the crime, the court's instruction

are binding on the jury and counsel as well."

Montgomery v. State, 292 Md. at 89.

6 Mad. Rule 757 b provides:

"The court may, and at the request

of any party shall, give those advisory

instructions to the jury as correctly

state the applicable law. The court may

give its instructions orally or, with the

consent of the parties, in writing. The

court need not grant any requested

instruction if the matter is fairly

covered by the instructions actually

given. In every case in which instruc-

tions are given to the jury the court

shall instruct the jury that they are the

judges of the law and that the court's

instructions are advisory only."

A.13

A distillation of Stevenson and

Montgomery leads us to conclude that it will

be a rare case indeed where there is "a

dispute Or sound basis for a dispute" as to

the “law of the crime." We envision that

such a dispute could arise when an accused is

charged with an attempt to commit a crime,

yet the evidence shows the crime was

completed. The jury might then be called

upon to decide the law of the crime. Does

the completion of the crime include the

attempt to commit it? Is the accused too

guilty to be guilty as charged?

Instances of dispute of the law of the

crime are an endangered species rapidly

approaching extinction. Once an appellate

court has ruled on the “law of the crime,"

the matter then becomes settled law, and

thereafter the jury is no longer the judge of

the law with respect to that particular

matter. Consequently, disputes of the law of

the crime will decrease in number with each

successive appellate ruling.

A.14

In the instant case, Judge Cicone, as we

initally noted, instructed the jury that,

"the law which is to be applied is clear and

.»-you should only act as judge of the

facts." He went on to state:

"[U]nder the Constitution of the State of

Maryland the jury in a criminal case is

the judge of the law as well as the

facts. However, this does not mean that

you are to conform to what you feel the

law should be or what you would like it

to be. Nor does it mean that the jury is

to make new law or ignore clearly

existing laws. What it does mean is that

the jury is to act as judge of the law

if the law which should be applied, is

uncertain or there is a dispute as to

preexisting law."

The instruction does more than satisfy

Stevenson v. State, supra, and Montgomery v.

State, supra. Indeed, in light of

Montgomery, the instruction given by Judge

Cicone seems to confer more upon Allnutt than

he is entitled to receive.

We think it the better practice for

judges to avoid instructing a jury that it is

the judge of the law, unless there is an

actual dispute or sound basis for a dispute

as to the law of the crime. Ordinarily,

A.15

there is no need for a judge to comment to

the jury upon the language of Article 23 of

the Maryland Declaration of Rights or of the

provisions of Md. Rule 757b.

itt.

The appellant's final grasp at victory

falls short. He asseverates that the evi-

dence was insufficient to sustain his convic-

tion because the State did not show that his

failure to pay taxes or file returns was

wilful. Almost, as if viewing an instant

replay, we are again compelled to revisit

Allnutt's sortie on the federal laws.

Because he relied on those federal laws,

Allnutt avers that he acted in good faith

and, therefore, cannot be convicted of

wilfully failing to comply with the Maryland

income tax and retail sales tax acts.

Neither the State, Judge Cicone, the jury nor

we share that view.

The evidence was crystalline that Allnutt

voluntarily and intentionally failed,

neglected or refused to perform a legal duty,

A.16

namely, file a 1981 income tax return and pay

the tax. He further voluntarily and inten-

tionally failed, neglected or refused to file

sales tax reports or to pay the sums due the

State.

The element of wilfulness does not

require proof of any particular motive other

than an intentional and voluntary violation

of a legal duty. Johnson v. State, supra;

United States v. Rifen, supra. Evidence that

Allnutt in prior years paid Maryland income

taxes, as well as retail sales taxes, is suf-

ficient to demonstrate that his failure to

file returns in 1981 was purposeful, deli-

berate, voluntary and intentional.

JUDGMENTS AFFIRMED

COSTS TO BE PAID BY APPELLANT.

A. 17

FRED W. ALLNUTT, SR. : IN THE

: COURT OF

$ APPEALS OF

vs. : MARYLAND

: PETITION NO.413

STATE OF : SEPTEMBER TERM, 1984

MARYLAND _ : (No.1588,September

: Term, 1983

: Court of

Special Appeals)

ORDER

Upon consideration of the petition

for a writ of certiorari to the Court of

Special Appeals in the above entitled case,

it is

ORDERED, by the Court of Appeals of

Maryland, that the petition be, and it is

hereby, denied as there has been no showing

by certiorari is desirable and in the public

interest.

/s/ Robert C. Murphy

Chief Judge

Date: December 4, 1984

IN THE COURT OF APPEALS OF MARYLAND

FRED W. ALLNUTT, SR.

PETITION DOCKET

NO. 413

Vv. $ September Term,

1984

(No. 1588,

September Term,

STATE OF MAR*’LAND : 1983, Court of

Special Appeals)

NOTICE OF APPEAL TO THE

SUPREME COURT OF THE UNITED STATES

Notice is hereby given that Fred W.

Allnutt, Sr., the appellant above-named,

hereby appeals to the Supreme Court of the

‘United States from the final judgment the

Court of Appeals of Maryland denying

Appellant's Petition for a Writ of

Certiorari, entered in this proceeding on

December 4, 1984.

This appeal is taken pursuant to

Title 28, United States Code, Section 1257,

Subparagraph (2). Dated: February 4, 1985

James L. Mayer

FILED: FEB. 5, 8293 Main Street

1985 Ellicott City, MD. 21043

(301) 465-6060

Attorney for Appellant

A. 19

ee

a OT Te een ee

CERTIFICATE OF SERVICE

I, James L. Mayer, a member of the

Bar of the Supreme Court of the United States

and counsel of record for Fred W. Allnutt,

Sr., Appellant herein, hereby certify that on

Febraury 4, 1985, pursuant to Rule 33, Rules

of the Supreme Court, I served one copy of

the foregoing Notice of Appeal on each of the

parties herein as follows:

Deborah K. Chasanow, Esquire,

Assistant Attorney General, counsel for the

State of Maryland, Appellee herein by depo-

siting such copies in the United States Post

Office, Ellicott City, Maryland, with first

class postage prepaid, properly addressed to

the post office address of Deborah K.

Chasanow, the above-named appellee's counsel

of record at 7 North Calvert Street, 4th

Floor, Baltimore, MD. 21202.

All parties required to be served

have been served.

Dated: February 4, 1985

James L. Mayer,

8293 Main Street

Ellicott City, MD. 21043

(301) 465-6060

Attorney for Appellant

FRAGRANCE EP ale ae

A.20