Petition for Writ of Certiorari — Thomas A. Ayre v. State of Maryland

» MUPREME court.

IN THE

jo Court of the Unite ‘States = :

OCTOBER TERM, 1974

v0, 28-2008 |

THOMAS A. AYRE,

Petitioner,

STATE OF MARYLAND,

Respondent.

WILLIAM £. SEEKFORD,

Suite 507

182 W. Penna. Avenue .

Towson, Maryland 21204

Counsel for Petitioner.

—_

INDEX

TABLE OF CONTENTS

Page

GEES aa I ea 2

EE was ak oS Eee a es wk en Ske vk su 3

I se ol yk k wd 60 uote ay Woke whos xka 3

Constitutional and Statutory Provisions Involved ........ 5

ee OD oc a ke kta ba wb deewcce 5

How Federal Questions are Presented ................ 7

Reasons for Granting the Writ :—

1. The charging document was void for failure to set

forth the essential elements and failed to charge

a cognizable crime and Petitioner was not

convicted of a cognizable crime under Article

27, Section 418, of the Annotated Code of

Maryland contrary to the Fifth, Sixth and

Fourteenth Amendments to the Constitution of

We WT OD osc wk so ks be hc ma wh whan 9

to

The provisions of Article 27, Section 418 do

not contain any definition of the words

“obscene” much less the specifically

defined sexual conduct mandated by this Court,

and the term has been judicially construed

to not require such conduct and thus is

void for vagueness and impermissible over-

breadth in limiting First Amendment freedoms

contrary to the provisions of the Fourteenth

SAS Bg Aaya gay 0 We be 0 ioe’ cs 21

4 Page

ii

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2

Fe ate

3. Petitioner was entitled to trial by Jury

since the statutory authorized penalty was

not a petty offense and the denial therefore

is a denial of the privileges and immunities

of the Fourteenth Amendment ..............25

4. Does the exemptions create invalid classifications

and thereby deny Petitioner the equal protection

of the law guaranteed by virtue of the Fourteenth

EE Scrat a kek eee ee 26

Conclusion

INDEX TO APPENDICES

Appendix “A”

Petitioners Motion to Dismiss

Pre Trial Motion to Dismiss .................... 7

Appendix “B”

Copy of order by Court of Appeals dated

April 11, 1974, denied the writ since

“There has been no showing that review

by Certiorari is desirable and in the

“spe dees cgsigg EEE RE OCTET OR TEE ee i2

Appendix “C™

Copy of charging document arrest warrant

SOs a ea aes ee eGo eaten 13

Appendix “D”

The pertinent provisions of the First, Fifth.

Sixth, and Fourteenth Amendments to the

Constitution of the United States and

the provisions of Article 27 Section 417

ee ee le ee a nck ee ke Oe ee eee 16

iil

TABLE OF AUTHORITIES

Cases Page

Argersinger v. Hamlin, 407 U.S. 25 ................ 13

Baldwin v. New York, 399 U.S. 66 ........... er

Braverman v. Bar Association, 209 Md. 328........... 24

Chicago G.P.R. Co. v. Bosham, 249 U.S. 164........... 3

Cole v. Arkansas, 333 U.S. 196 ................. 10,18

Dillingham v. State, 9 Md. App. 202 | ree

ee V Wh, OOo OO ON os ko kk Pikeecundu, 26

Grinder v. Nelson, 9 Gill 299 ........2............ 24

woe TEM, DO, GO is oo a ewe oe 13,15

Hodgson v. Vermont, 168 U.S. 262 .............. 13,16

Imbraguglia v. State, 184 Md. 174 ................. 1]

Lancaster v. State, 7 Md. a a

Levin v. State, | Md. App. 139(1967) ........... - hae

Mayor & City Council v. Sehner, 27 Md. 1809......... 24

Memoirs v. Massachusetts, 383 U.S. 413 ........ ree 2

Miller v. California, No. 70-73, 41 L.W.

4923, 413 U.S. 15 93 S. Ct. 37 Led 24419 ....... 23

Rabe v. Washington, 405 U.S. 313 ................. 10

Roth v. U.S., 354 U.S. 476... ..2................ 21

Russell v. U.S. 369 U.S. 749 ................... 14,19

Seidman v. State, 230, Md. 305................. 13,17

State v. Harry J. DiPaula, 1969-4622 & 4633 ._. eens ey

State v. Lassotovich, 162 Md. 147 ............. 11,13,17

State v. Monfred, 183 Md. 303 ................. 14,18

State v. Smith. 17 R.I. 371, 22 A. 282............ 14,18

State v. Wallicks, 11 N.W. 860, 861, 12 Neb. 407. a

Staten v. State, 13 Md. App. 425.................. 26

U.S. v. Cruikshank, 92 U.S. 542 ................ 14,19

U.S. v. Hess, 124 U.S. 483 .................... 13,16

U.S. v. Lurus, 253 F. Supp. 160 ................ 13,16

Village Books Inc. v. States Attorney, 263 Md. 76

(1971) 282 A.2d 126 cies Wie S'S Ak wk a ee ane 2S Ce

wens 04, OS TIP US FF Cw. ck... 13,15

RN Bo

LEONEL BIBRA I

iv

° Constitutional and Statutory Provisions

Page

U.S. Constitution

SE Nn ce Sake ea eke BR 4,7,21,28,29

RARER L CLS COREE Tee 7

SES eer sae ee 7,9,10,15,18

pe) ae 4,7,9,10.11,13,15,18,25

Amendment Fourteen..... 3,4,8,9,10,11,12,15,18,21,25

Maryland Constitution

ee ONE ona 6 a ca a Sea AE aa Oe kd 3

Article 27, Section 418 . .2,3,6,9,14,21,22,24,25 ,26,33,34

NR Ep agg eae ae 5,9,21

ES ate gs Uy Se ee ka Dewi bs Oe ee ae 7

Miscellaneous

Webster’s New International Dictionary

ee ee hk ee RR ee 11

Black’s Law Dictionary,

Ae I oy ke ob bh A ee RO 11

IN THE

Supreme Court of the United States

OCTOBER TERM, 1974

NO.

THOMAS A. AYRE,

Petitioner,

STATE OF MARYLAND,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE CRIMINAL COURT OF

BALTIMORE CITY

~

Petitioner prays that a Writ of Certiorari issue to review the

judgment of the Criminal Court of Baltimore entered in the above

entitled case on November 30, 1973.

2

OPINIONS BELOW

The judgment and opinion of His Honor, Judge Charles

D. Harris in the Criminal Court of Baltimore entered on

November 30, 1973 in Criminal No. 37301598 was done

orally and has not been printed either in official reports or in

a slip opinion and therefore is only available by transcript.

This oral opinion found Petitioner guilty of violation of

Article 27, Section 418 of the Annotated Code of Marvland.

A Memorandum Opinion filed on November 5, 1973. had

previously denied Petitioner's Motion to Dismiss. This opinion

is set out as Appendix “A” herein.

The Petitioner made Application to the Court of Special

Appeals for the State of Maryland for Writ of Certiorari on

December 27, 1973 and Docketed as Miscellaneous No. 34.

September Term, 1973. The Petitioner was informed by letter

from the clerk on February 13, 1974 that the Petition was

informally denied without comment on February 7, 1974. A

check of the docket verified this denial.

The Petitioner then made Application to the Court of

Appeals of Maryland on March 7, 1974 and Docketed as

Miscellancous No. 12, September Term, 1974. The Court of

Appeals by written order dated April 11. 1974 denied the

writ since:

“...there has been no showing that review by

certiorari is desirable and in the public interest.”

Copy of this order is set out as Appendix “B™ herein.

3

JURISDICTION

The judgment of the District Court of Maryland in

Baltimore City was entered by His Honor, Judge Edgar P.

Silver upon arrest warrant No. 150715 on August 9, 1973

finding Petitioner guilty of violating Article 27, Section 418

of the Annotated Code of Maryland and imposing a fine of

one hundred dollars and costs. Copy of charging document set

out as Appendix “C”’.

The judgment of the Criminal Court of Baltimore (De

Novo) was entered on November 30, 1973 by His Honor,

Judge Charles D. Harris upon this same arrest warrant which

was docketed as No. 37301598. This judgment found

Petitioner guilty of the statutory violation and again imposed

a One hundred dollar fine.

An Application for Writ of Certiorari was denied on

February 7, 1974 without order, comment or opinion by the

Court of Special Appeals of Maryland.

An Application for Writ of Certiorari was denied on April

11, 1974 by Order of the Court of Appeals of Maryland, and

the judgment was thus final. Chicago G.P.R. Company y.

Basham, 249 U.S. 164. The jurisdiction of this Court is

invoked under 28 U.S.C. Section 1257.

QUESTIONS PRESENTED

1. Can a charging document charge and cause a conviction

upon a crime that is not within the statute compatible with

the Fourteenth Amendment?

2. Must a charging document in obscenity cases at the

minimum identify the type of material charged or the

particular publication or title so as to provide adequate notice

4

to him so he may properly defend and plead acquittal or

conviction in a subsequent prosecution under the Fourteenth

Amendment?

3. Does a charging document become defective when it

charges a crime but ends with “etc.” meaning and others

under the Fourteenth Amendment?

“ee

4. Must a state statute that fails to define conduct be

authoritatively construed to contain the Miller specifically

defined conduct in order to support a conviction under the

First and Fourteenth Amendments?

5. Where a state statute fails to define the sexual conduct

under Miller and where the State’s highest Appellate Court

has refused to construe the conduct into the statute by

holding that the word obscene cannot be defined and no

conduct was necessary in order to be obscene, is that statute

unconstitutionally vague and overbroad under the Fourteenth

Amendment in limiting First Amendment treedoms?

6. Where the statutory penalty provides for a sentence of

one year imprisonment and one thousand dollars fine, must a

jury trial be granted irrespective whether punishment was one

hundred dollars fine in determining a petty offense under the

Sixth and Fourteenth Amendments?

7. Does the statute deny to Petitioner the equal

protection of the law under the Fourteenth Amendment

where large classifications are totally exempt from obscenity

charges whereas Petitioner is not making them unreasonable

classifications?

5

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The pertinent provisions of the First, Fifth, Sixth and

Fourteenth Amendments to the Constitution of the United

States and the provisions of Article 27, Section 417 et seq.

are set forth in Appendix “D” hereto.

STATEMENT OF THE CASE

The Petitioner was arrested on a warrant by Sergeant

Donald Dougherty of the Baltimore City Police Derartment

on July 9, 1973 for the sale of various obscene materials on

June 26, 1973. The arrest was made upon an arrest warrant

numbered 150715 issued by the District Court of Maryland,

charging Petitioner 2 weeks Previously with having;

“Unlawfully & knowingly did possess obscene &

indecent books, drawings, pamphlets, Pictures, etc.

with intent to sell in Baltimore City, St. of Md.”

The Petitioner was tried on August 9, 1973, in the

District Court of Maryland, before the Honorable, Judge

Edgar P. Silver, and was found guilty and fined one hundred

dollars and costs.

The Petitioner appealed to the Criminal Court of

Baltimore and filed a Prayer for a Jury Trial. Trial in District

Court is by a Judge only. Trial in Criminal Court is De Novo

and juries are available.

Gn October 29, 1973, the Petitioner was called to trial

before the Honorable, Judge Charles D. Harris and prior to

seit tae ae

6

trial filed a Motion to Dismiss with a Memorandum of Points

and Authorities in support of it, which is the proper way to

test the sufficiency of the charging document. The Petitioner

again stated his desire for a Jury Trial and objected to the

Court for failure to permit one. Judge Harris denied trial by

Jury since the lower Court sentence was not considered to be

serious enough for the right to Trial by Jury. The authorized

penalty for violation of Article 27, Section 418 is one year

imprisonment and $1,000.00 fine. A second conviction is

punishable by 3 years and $5,000.00 fine.

The Petitioner presented argument to the Court upon his

Motion to Dismiss. Judge Harris granted a continuance for the

State to present opposing argument and for him to review the

Motion and the brief.

On November 1, 1973, the State filed a Motion to

Supplement the Recor! and filed the Application for

Summons/Arrest Warrant which was granted. Judge Harris on

November 5, 1973, filed a Memorandum Opinion Denying the

Motion to Dismiss.

The matter was called to trial on November 30, 1973.

The Petitioner renewed his request for Jury Trial and his

Motion to Dismiss both of which were denied. A Motion tor

Judgment of Acquittal was made and denied at the conclusion

of the State’s case and renewed at the conclusion of the

entire case. The Petitioner was again found guilty and the

judgment and fine of the District Court of Maryland was

adjudged.

A Petition for a Writ of Certiorari was filed in the Court

of Special Appeals and Docketed as Miscellaneous No. 34,

7

. September Term, 1973. On February 13, 1974, Petitioner's

counsel received a letter dated February 11, 1974, from Julius

A. Romano, Clerk, Court of Special Appeals of Maryland,

Stating that the Court denied the request On February 7,

1974, by endorsement upon the margin initialed by His Honor,

Chief Judge Charles E. Orth, Jr.. A check of the Clerk’s

records revealed this Petitioner was in fact denied on that

date without comment.

A Petition for Writ of Certiorari was then filed in the

Court of Appeals of Maryland and Docketed as Miscellaneous

No. 12, September Term, 1974. The Court by written Order

on April 11, 1974 denied the Writ as it was not shown to be

desirable and in the public interest. Sec Appendix “B”.

HOW FEDERAL QUESTIONS

ARE PRESENTED

Under Maryland statutes (Article 26, Annotated Code of

Marvland) the District Court has jurisdiction of all

misdemeanors (the offense at issue is a misdemeanor) regardless

of penalty which are triable only by a Judge.

The Petitioner filed an oral Motion to Dismiss which was

denied. An appeal was filed to. the Criminal Court of

Baltimore. This trial is de novo with panels available for jury

trials. There are no appeals from this trial as a matter of right.

On behalf of Petitioners the following points were raised

prior to trial by Motion to Dismiss in the Criminal Court of

Baltimore: a) the statutory provisions as written, construed

and applied were void for impermissible vagueness and

overbreadth contrary to the First, Fourth, Fifth, Sixth and

+4

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8

Fourteenth Amendments; b) the denial of equal protection of

the laws since arbitrary classifications permit improper

exemptions; c) that the statutory provisions as written failed

to conform to Miller standards of conduct and had not been

so construed; d) the trial proceedings created an ex post facto

enforcement of the pre-existing statute; e) that the charging

document failed to specify what crime he was charged with

and what material was being charged against him; f) that the

charging document failed to inform him of what he was called

upon to defend in order to prepare therefore and to plead

acquittal or conviction in bar to any subsequent prosecutions

which denied to him due process of the laws; g) that the

statute failed to properly warn him of what actions on his

part would come within the proscription of the statute.

At trial the Petitioner moved for Judgment of Acquittal

citing the above reasons together with the fact that the crime

charged was not a crime under the statute.

The pre-trial Motion to Dismiss was denied by Judge

Harris in a written opinion on Noven.ber 5, 1973 and the

Motion is set forth as Appendix “A” herein. Post trial

motions were denied orally by Judge Harris including failure

to convict him of a crime.

A timely Application for Writ of Certiorari to the Court

of Special Appeals was taken from the judgment of Judge

Harris. This application preserved the federal constitutional

questions for review by that Court. The Court of Special

Appeals denied this application without written order. or

opinion.

NOS AEE EID

9

A timely Application for Writ of Certiorari was taken to

the Court of Appeals. This application preserved the federal

constitutional questions for review also by that Court. The

Court of Appeals entered an Order on April 11, 1974 Stating

that there was no Showing that review by certiorari is

desirable and in the public interest.

REASONS FOR GRANTING THE WRIT

1. The charging document was void for failure to set

forth the essential elements and failed to charge a cognizable

crime and Petitioner was not convicted of a cognizable crime

under Article 27, Section 418, of the Annotated Code of

Maryland, contrary to the Fifth, Sixth and Fourteenth

Amendments to the Constitution of the United States.

The arrest warrant upon which the Petitioner was tried

charges him with Possessing miitiple unnamed materials “with

intent to sell’.

The statute, in respect to possession, does not proscribe

such activity but only prohibits possession with intent to

“distribute”. The term distribute for Purposes of the statute is

defined under Section 417 as “to transfer possession of

whether with or without consideration”. See Appendix “D”.

The statute was amended on June 1, 1967 and charged

distribution only as a possessory crime by transfer of it which

covered those instances where delivery was affected only.

Possession for Purposes of sale was repealed. Delivery or the

intent to deliver to another becomes the essence of the crime.

In fact the statute specifically bars sending or causing to be

= ON EPL

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10

sent into the State of Maryland for “sale or distribution”

which recognizes a difference between sale and distribution.

Therefore, this Petitioner was charged, tried and convicted

and punished for a crime that is not a crime under the statute

contrary to the Fifth, Sixth and Fourteenth Amendments.

This Court has held in a line of cases that it is as much of

a denial of due process to convict their Petitioner of a crime

that is not within a statute as it is to convict this Petitioner

of a crime with which he is not charged. Rabe v. Washington,

405 U.S. 313, and Cole v. Arkansas, 333 U.S. 196.

This warrant also charged the Petitioner with possessing

“indecent” material for sale whereas “indecent” is not found

nor proscribed in the statute either.

In regard to the material charged the warrant recites it as:

“... books, drawings, pamphlets, pictures,

a

Not one title of any publication nor even a hint as to the

meaning of “etc.” is given. It then becomes necessary to

research the meaning of “etc.” to determine the full extent of

the criminal act or conduct.

“

The first premise to be considered is that under Maryland

law the charging document must stand on its own by its

terms upon its face. A_ Bill of Particulars is purely

discretionary and is not mandatory that it be given to any

Defendant. It is specifically true that a defective charging

document will not be made good by a Bill of Particulars if

granted. /Imbraguglia v. State, 184 Md. 174 and State vy.

Lassotovich, 162 Md. 147. To claim a defect in the charging

document a Motion to Dismiss must be filed before trial

which was done in this case. With that we can look to the

meaning of “etc.” upon this criminal warrant. This is

particularly necessary under the Sixth and Fourteenth

Amendments.

a

In Websters New International Dictionary, Second

Edition, unabridged “‘etc.”’ and “etcetera” are defined as:

“Etcetera (L.) etc. and + cetera other things and

others (of the like kind); and the rest: and so on: and

so forth: — used to point out that other things which

could be mentioned are to be understood. Sometimes

written as one word: usually abbreviated to etc.”

And Black's Law Dictionary, Revised Fourth Edition,

1968 defines it thusly in its legal connotation:

“ET CETERA (or ET CAETERA). And others; and

other things: and others of like character: and others

of the like kind; and the rest; and so on: and so

forth. Muir v. Kay, 66 Utah, 550, 244 P. 901, 904:

Osterberg v. Section 30 Development Co, 160 Minn.

497, 200 N.W. 738, 739: State on Inf. Haw v. Three

States Lumber Co., 274 Mo. 361, 202 S.W. 1083,

1084: Wagner v. Brady, 130 Tenn. 554, 171 S.W.

1179; Fleck v. Harmstad, 304 Pa. 302, 155 A.875,

877, 77 A.L.R. 874. In its abbreviated form (etc.)

this phrase is frequently affixed to one of a series of

articles or names to show that others are intended to

follow or understood to be included. So, after

reciting the initiatory words of a set formula, or a

clause already given in full, ete. is added, as an

ig, NEE a 8

Satay Tae te!

TORN > ie

12

abbreviation, for the sake of convenience. And other

things of like kind or purpose as compared with those

immediately theretofore mentioned. Hisaw v. Ellison

Ridge Consolidated School Dist., 189 Miss. 664, 198

So. 557, 558.

In its abbreviated form (etc.) this phrase means

and other like purposes. Anderson & Kerr Drilling Co.

v. Bruhlme er, Tex.Civ.App., 115 S.W.2d 1212, 1214:

other things of like character. Lewis v. Ladner, 177

Miss. 473, 168 So. 281, 282; other things or the rest:

and so forth; used to indicate others of a kind

specified, Potter v. Borough of Metuchen, 108 N.J.L.

447, 155 A.369, 370; others of the like kind: and the

rest; and so on; and so forth, Forman v. Columbia

Theater Co., 20 Wash.2d 685, 148 P.2d 951, 953. In

such form it is frequently affixed to one of a series

of articles or names to show that others are intended

to follow or understood to be included so, after

reciting the initiatory words of a set formula, or a

clause already given in full, ete. is added, as an

abbreviation for the sake of convenience. See Lathers

v. Keogh, 39 Hun, N.Y., 579; Morton v. Young, 173

Ky. 301, 190 S.W. 1090; Becker v. Hopper, 22 Wyo.

237, 138 P. 179, 180, Ann. Cas. 1916D, 1041.”

,’

The criminal charge ending in “etc.” which means and

others of a like kind as of a like character or as Black says

“and the rest” does not specify any definite criminal material

or crime.

In State v. Wallicks, 11 N.W. 860, 861, 12 Neb. 407 it

was appropriately stated:

“Etc. is equivalent to saying ‘and others’, which is

not a specific designation of anything; and an

appropriation for certain described objects, etc. is not

a specific appropriation within the Constitution.”

nn re nm

13

To use etc in relation to what Petitioner is charged is a

denial of the fundamental rights under the Sixth Amendment

which is applicable to the states under the Fourteeath,

Argersingen v. Hamlin, 407 U.S. 25. See also US. y. Hess,

124 U.S. 183.

A charging document must include all the essential

ingredients of the alleged offense with such definiteness and

reasonable certainty as to fully apprise the Petitioner of the

nature and the cause of the accusation against him in order

that he may be Properly prepared in his defense. Wong Tai v.

U.5., 273 U.S. 77 and Hagner v. U.S., 285 US. 427. The

Sixth and Fourteenth Amendments require that the Petitioner

“be informed of the nature and cause of the accusation”

against him. See also Article 21, of the Maryland Declaration

of Rights. Every essential element and every fact which is an

element of a prima facie case of guilt must be stated in the

complaint, U.S. v. Hess, 124 U.S. 483 and the description of

the offense must be sufficiently full and complete to accord

the accused his constitutional right to due process, Hodgson y.

Vermont, 168 U.S. 262.

In U.S. v. Luros, 253 F. Supp. 160 (1965) some of the

necessary ingredients and elements to be charged in a warrant

was found to be the volume and issue number of the

publications. This was so held by Judge Magill in Howard

County, Maryland on November 24,1969 in State v. Harry J.

DiPaula, Indictments 1969 — 4622 and 4633 citing Seidman

v. State, 230 Md. 305 and State v. Lassotovich, 162 Md. 147.

It is also worthy to note at this point that a bill of

Particulars if granted is not a part of an indictment,

Lassotovich, supra.

UPCRAIBY E> SAE Ime .

14

The principle of identifying what material is alleged to be

obscene is noted in State v. Monfred, 183 Md. 3G3. See also

State v. Smith, 17 R.1. 371, 22 A.282.

Equally important is the fact that a charging document

should be precise enough to plead conviction or acquittal in

bar to any subsequent prosecution, Russell v. U.S., 369 U.S.

749, and U.S. v. Cruikshank, 92 U.S. 542.

With these principles let us look at the warrant upon

which this Petitioner was arrested, tried and convicted. First,

he was charged with possessing alternatively both “indecent”

and “obscene” books; not one title or specific book was set

forth. Next came drawings in the same context, as well as

pamphlets and pictures which takes in probably millions of

separate items, volumes and issues. That is not the end

however, for the warrant then charges indecent and obscene

“etc,” which is a contraction for the word etcetera. Etcetera

literally means and others, possibly every conceivable thing

that could be obscene or indecent.

There is no place in the criminal laws for a defendant to

be charged with a series of crimes identified only as

“etcetera.”

This warrant also fails to allege material and essential

elements under Section 418 since no allegation of distribution

or exhibition is set forth. This warrant then fails to state a

crime under the statute.

The warrant brought against Thomas Ayre in the case at

bar fails to specify the volume and issue number or title,

15

name or description, if any, of the matters alleged to be

obscene. For the failure a warrant to include all the essential

ingredients of the alleged offense with such definiteness and

reasonable certainty as to fully apprise the accused of the

nature and cause of the accusation against him in order that

he may properly prepare his defense, the warrant is thus

constitutionally and fatally defective and must be quashed.

Wong Tai v. United States, 273 U.S. 77 and Hagner v. United

States, 285 U.S. 427. Fifth, Sixth, Fourteenth Amendments.

The Circuit Court of Appeals in United States vy. Jackson,

(CA-3) 344 F.2d 158 summarized it thus:

“An indictment is sufficient when it enables the

defendant to know the nature of the cause against

him and to prepare for trial and is sufficiently

specific that the record of the conviction or acquittal

thereon can be used as a basis for a plea of double

jeopardy in a subsequent prosecution.”

The Federal Constitution, in the Bill of Rights,

Amendment Sixth, guarantees each Defendant the right “to

be informed of the nature and cause of the accusation”

against him. Many states have also made this same right a part

of their respective constitutions as Article 21 of the Maryland

Declaration of Rights does. The Fourteenth Amendment makes

this applicable to the states including Maryland.

Every material fact and essential ingredient of the offense,

every essential element of the offense, must be alleged with

precision and certainty, or, as has been Stated, every fact

whidh is an element in a prima facie case of guilt must be

16

stated*in the complaint (United States v. Hess, 124 U.S. 483).

The compiaint must include a characterization of the crime

and such description of the particular act alleged to have been

committed by the accused as will enable him properly to

defend against the accusation. (United States v. Britton, 1C~

U.S. 655, United States v. Hess, 124 U.S. 483, Standard Ou

Co. v. United States, (CA-5) 307 F.2d 120; Wood v. United

States, (CA-10), 317 F.2d 736) and the description of the

offense must be sufficiently full and complete to accord the

accused his constitutional right to due process of law.

(Hodgson v. Vermont, 168 U.S. 262).

United States v. Luros, 253 F. Supp. 160 (1965),

obviously, some of the necessary ingredients and elements to

be charged in each Warrant are the volume and issue number

of the publications or titles of film or description of so called

matter, alleged to be obscene and to whom such materials

were allegedly sold. The failure to so charge makes it clear

that the Warrant is constitutionally deficient, and should be

dismissed.

Several of the relevant cases decided by Appellate Courts

in other states are as follows:

Reyes v. State, 15 So. 875 (1948), Fla.: Kittleson vy.

State, 9 So. 2d 807 (1942): Adams v. Culver, 111 S. 2d 665

(Fla. 1959); State v. Barnes, 253 N.C. 711, 117 S.E.2d 849

(1961): State v. Greer, 238 N.C. 325, 77 S.E. 2d 917 (1953):

People v.. Zambounis, 251, N.Y. 94. 167 N.E. 183 (1929);

People vy. Zucker, 225 N.Y.S. 2d 154 (1962): State vy.

Zurhorst, 79 N.E. 238 (1906) and State v. Banks, 263 N.C.

784, 140 S.E. 2d 318 (1965).

17

One of the most recent pronouncements of this principle

is found in the Circuit Court for Howard County, Maryland in

the matter styled State of Maryland v. Harry J. DiPautla,

Criminal Indictments Nos. 1969-4622 and 4633 decided

11/24/69 by His Honor Judge Magill, which was restated and

affirmed in the re-indictment case of that Defendant in NOS

4754, 4755 and 4756 dated September 9, 1970. In the

subsequent case one count in each indictment was dismissed

for failure to name or specify the person or persons to whom

the defendant distributed or offered to distribute the material

while the former indictments were dismissed for failure to

name the publications alleged to be obscene.

This became a critical factor later when it was discovered

that the magazine introduced in the subsequent indictment

was never testified to nor mentioned as an explanation for its

substitution.

Those dismissals were predicated on two Maryland

appellate decisions. Seidman y. State, 230 Md. 305 and State

v. Lassotovich, 162 Md. 147.

In the Seidman case it was held:

“.. lack of a full allegation of an essential matter,

where known, even though the indictment may

follow the language of the statute or of a statutory

authorization, may be fatal...”

And in the Lassotovich case it was held that a Bill of

Particulars is for the accused’s benefit only and the fact he

could demand it is immaterial in determining whether an

indictment is defective for failure to identify the crime. In

any event, a Bill of Particulars is not a part of an indictment.

a Pec PNSRER

.

J

See also Willis v. State, 205 Md. 118; Jules v. State, 85

Md. 305: and Delcher v. State, 161 Md. 475.

18

This necessity for identifying and naming the material was

recognized in obscenity cases under the Maryland case styled,

State v. Monfred, 183 Md. 303.

Directly in point is the case of State v. Smith, 17 R.I.

371, 22 A. 282.

The Petitioner’s procedural and substantive due process

rights under the Fifth, Sixth and Fourteenth Amendments to

the Constitution of the United States require that the

indictment filed against him be certain, free from ambiguity

and vagueness, and specific as to the crime alleged in order

for him to prepare his defense and to plead in bar to a

subsequent prosecution.

It is an elementary principle of criminal law that in order

to properly charge a criminal offense, there must be a formal

charge containing all of the essential elements necessary to

constitute the crime alleged. The Sixth Amendment to the

United States Constitution, made obligatory on the various

states through the Due Process clause of the Fourteenth

Amendment provided in pertinent parts:

“In all crimes or prosecutions the accused shall enjoy

the right... te be informed of the nature and cause

of the accusation...”

The United States Supreme Court in Cole v. Arkansas,

333 U.S. 196, 92 L. Ed. 632 (1948), had the following to say

of Due Process in an appeal from an Arkansas conviction:

Ed.

of

19

“No principle of procedural due process is more

clearly established than that notice of specific charge,

and a chance to be heard in a trial of the issues raised

by that charge, if desired, are among the

constitutional rights of every accused in a criminal

proceeding in all courts, state or federal.”

See also Re Oliver, 333 U.S. 257, 68 S. Ct. 499, 92 L.

683, (1947).

A criminal warrant should on its face apprise the accused

what he is charged, without relying on extraneous

argument to clarify it. This warrant does not have a specific

crime charged with certainty upon its face, and extraneous

argument is required to attempt to clarify what crime is

actually charged.

In discussing the elements necessary in an indictment to

charge a criminal offense the United States Supreme Court in

Russell v. U.S., 369 U.S. 749, 8 L.Ed.2d 240 (1962), said at

page 765:

“It is an elementary principle of criminal pleading,

that where the definition of an offense, whether it be

at common law or by statute, ‘includes generic terms,

it is not sufficient that the indictment shall charge

the offense in the same generic terms as in the

definition; but it must state the species, — it must

descent to particulars’.”

See also U.S. v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588.

The Court in Russell, supra, went on to cite US. y.

Simmons, 96 U.S. 360, and quoted from there the following:

20

“In an indictment upon a statute, it is not sufficient

to set forth the offense in the words of the statute,

unless those words of themselves fully, directly, and

expressly, without any uncertainty or ambiguity, set

forth all the elements necessary to constitute the

offense intended to be punished...”

The Court stated two criteria for the o“fficiency of an

indictment:

“These criteria are, first, whether the indictment

‘contains the elements of the offense intended to be

charged, and sufficiently apprises the defendant of

what he must be prepared to meet’ and secondly ‘in

case any other proceedings are taken against him for

a similar offense. whether the record shows with

accuracy to what extent he may plead a former

acquittal or conviction’.”

See also Cochran & Sayre v. U.S. 157 U.S. 286: Rosen v. U.S.

161 U.S. 29: Hagner vy. U.S., 285 U.S. 427.

And finally, the court said:

“An indictment not framed to apprise the defendant

‘with reasonable certainty, of the nature of the

accusation against him’ ...is defective, although it

may follow the language of the statute.”

See also U.S. v. Simmons, supra.

The United States Supreme Court in US. v. Clark,

(1874), 20 Wall. 92, 22 L.Ed. 320 (Confiscation Cases)

commented on both the information and the indictment as

well as the disjunctive portion of the charges:

21

“It may be conceded that an indictment or criminal

information which charges the person accused, in the

disjunctive, with being guilty of one or another of

several offenses, would be destitute of the necessary

certainty, and would be wholly insufficient. It would

be so for two reasons. It would not give the accused

definite notice of the offense charged, and thus

enable him to defend himself, and neither a

conviction or an acquittal could be pleaded in bar to

a subsequent prosecution for one of the several

offenses.” (Emphasis supplied.)

It would violate Due Process to charge the Defendant in such

a manner as in this case.

2. The provisions of Article 27, Section 418 do not

contain any definition of the words “obscene” much less the

specifically defined sexual conduct mandated by this Court,

and the term has been judicially construed to not require such

conduct and thus is void for vagueness and impermissible

overbreadth in limiting First Amendment freedoms contrary

to the provisions of the Fourteenth Amendment.

Article 27, Section 418 has several definitions set out in

Section 417 that apply to it. However, there is no definition

for the term “obscene”.

Therefore “obscene” must be determined as it is known

in legal terminology just as any other crime that. is not

legislatively defined. In that regard, the United States

Supreme Court in 1954 in Roth v.U.S. 354 U.S. 476 set forth

the minimal requirement of limiting speech for obscenity by

requiring that a finding be made that the average person

applying contemporary community standards would find that

22

the work taken as a whole appeals to the prurient interest.

And in 1966 that Court in Memoirs v. Massachusetts, 383

U.S. 413 required the states to establish three independent

findings and to further find that the three tests were met

together in the work, i.e. (1) The dominate theme of the

material taken as a whole appeals to a prurient interest in sex;

(2) the material is patently offensive because it affronts

contemporary community standards relating to the description

or representation of sexual matters; and (3) The material is

utterly without redeeming social value.

The Maryland legislature following these decisions enacted

the present Section 418 which took effect on June 1, 1967.

Therefore the Maryland legislature must be presumed to have

adopted the Constitutional test for obscenity on that date.

Therefore it was the legislature’s intent to have prosecutions

proceed under the Memoirs test. The Maryland Courts

adopted this view requiring Memoirs criteria. See Levin vy.

State, | Md. App. 139 (1967); Lancaster v. State, 7 Md. App.

602; Woodruff v. State, 11 Md. App. 202 (1971): Dillingham

vy. State, 9 Md. App. 669 (1970): and Village Books Inc. vy.

States Attorney, 263 Md. 76 (1971), 282 A.2d 126.

The various Appellate Court decisions were not concerned

with the necessity for specifically defining the patently

offensive “hard-core.” sexual conduct. In fact, the Court of

Appeals in Village Books stated that the precise meaning of

“hard-core” pornography continued to elude them as well as

other Courts. It was emphasized in the statement that

“perhaps a completely satisfactory definition will never

evolve”. It was also set out in Levin v. State, 1 Md. App139

(Cert. denied Court of Appeals, 6/13/67 that no sexual act

was necessary to constitute “hard-core” pornography.

23

Yet on June 21, 1973 the Supreme Court of the United

States in Miller v. California, No. 70-73, 41 L.W. 4923; 413

U.S. 15, 93 S. Ct. __ 37 L. Ed. 2d 419 and the companion

cases completely changed the law of obscenity. It is better

put in their own words:

“State statutes designed to regulate obscene materials

must be carefully limited.

“As a result, we now confine the permissable scope

of such regulation to work which depict or describe

sexual conduct. That conduct must be specifically

defined by the applicable state law as written or

authoritatively construed. A state offense must also

be limited to works which taken as a whole, appeal

to the prurient interest in sex, which portray sexual

conduct in a patently offensive way, and which,

taken as a whole, do not have serious literary, artistic,

political, or scientific value.

“Under the holding announced today, no one will be

subject to prosecution for the sale or exposure of

obscene materials unless these materials depict or

describe patently offensive ‘hard-core’ sexual conduct

specifically defined by the regulating state law, as

written or construed. We are satisfied that these

specific prerequisites will provide fair notice to a

dealer in such materials that his public and

commercial activities may bring prosecution.”

(emphasis supplied).

Immediately following this decision the Supreme Court

on June 25, 1973 vacated and remanded the judgment of

1 SARL NERA ARR

PRODI E AEE BOF BGI

24

Village books Inc. v. States Attorney, —— USS. No.

73-1060, Oct. Term, 1973. However, the Maryland Court of

Appeals reconsidered the case in light of Miller as directed

and by order dated October 10, 1973 reinstated its judgment

and order. That Court apparently refused to construe Section

418 or 418-A to specifically define the “hard-core” sexual

conduct. Therefore the Maryland statute has no authoritative

judicial construction for such specific definition. This is

markedly true since the statute itself has no definition and it

is not susceptibel of any construction to provide such conduct

under Maryland law.

In fact, the Court there could not so construe the vacant

statute and insert by judicial legislation a selection of the

varied sexual conduct that would be considered “hard-core”

pornography. To do so would violate the doctrine of

separation of powers and the mandates of Article 8, of the

Maryland Declaration of Rights and Article III, Section 1, 27,

28, and 29 of the Constitution of Maryland.

The trial Court therefore clearly erred in creating

legislation where it did not formerly exist in convicting this

Petitioner. [1 also erred in not considering the construction of

the statute by Maryland’s highest Court since Petitioner was

entitled to rely upon the highest authoritative decision.

Maryland hoids that where a statute is open to

interpretation it will be construed to operate prospective,

Grinder v. Nelson, 9 Gill 299; Mayor and City Council vy.

Sehner, 37 Md.-180; Braverman y. Bar Association, 209 Md.

328. Since sexual conduct was not the criteria under the

statute on June 26, 1972 as well as all the other alterations

25

such as burden of proof, evidence and standards, this

Petitioner cannot now be proceeded against in this fashion.

Since Maryland’s highest authoritative Court, when

directly presented the opportunity to construe this statute by

this Court, absolutely refused to do so then this Statute is

constitutionally invalid. This is not a case where the mere

Opportunity was not afforded that Court for this was

impliedly ordered by this Court upon its remand for

reconsideration in light of Miller, supra.

3. Petitioner was entitled to trial by jury since the

Statutory authorized penalty was not a petty offense and the

denial therefore is a denial of the privileges and immunities of

the Fourteenth Amendment by way of the Sixth Amendment.

The crime of violating Article 27, Section 418, is

punishable by imprisonment for one year and a fine of one

thousand dollars ($1,000.00) for the first offense. A

subsequent conviction permits imprisonment up to three years

and a five thousand dollar ($5,000.00) fine. This clearly

entitles the Petitioner to trial by Jury as he requested. And

this right is guaranteed by virtue of Article 2] of the

Maryland Declaration of Rights and the Sixth and Fourteenth

Amendments to the United States Constitution.

Judge Harris denied the Jury trial since the penalty

imposed in the District Court was a one hundred dollar

($100.00) fine and costs. Apparently he considered it to be a

petty crime under the dictates of Baldwin vy. New York, 399

U.S. 66 where the division was set out at six months

imprisonment and a five hundred dollar ($500.00) fine. Yet

under Maryland law a penalty of 3 months or $500.00 is the

highest penalty for a petty offense.

= MEM PRS t

a,

%, 26

However, in Frank vy. U.S. 395 U.S. 147, it was noted

that the penalty authorized not the one imposed, was

- controlling. See also Staten v. State, 13 Md. App. 425. Here

not only was the authorized penalty severe enough in itself,

but also the fact that another conviction thereafter permitted

triple the first offense imprisonment hinged upon the first

conviction.

If the ruling below was correct, then any conviction for

rogue and vagabond, Section 490, Carnal Knowledge, Section

464, removing railroad tracks and switches, Section 457,

pandering, Section 426 and many other misdemeanors tried in

District Court may not be tried with a Jury upon appeal.

Clearly the penalty imposed below is not the criteria in

determining a petty offense. For it is the statutory penalty

that determines the gravity of the crime as well as the right to

trial by Jury. Frank v. U.S., 395 U.S. 147; Baldwin v. N_Y.,

399 U.S. 66; and Codispoti v. Pennsylvania, No. 73-5615

decided June 26, 1974.

4. Does the exemption create invalid classifications and

thereby deny Petitioner the equal protection of the law

guaranteed by virtue of the Fourteenth Amendment?

Article 27, Section 418 is governed by the exemptions

from criminal liability and prosecutions contained in Sections

417 (2) and 423. In effect motion picture theater employees

no matter what they sell or exhibit cannot be prosecuted.

Similarly persons with bona fide “justification” may possess

and sell this matter without prosecution.

This Petitioner is merely an employee and is denied these

exemptions in the book store.

27

Therefore the statute as written lays an unequal hand

upon the Petitioner. A classification for exemption in a penal

statute must have a valid and substantial reason for the

classification. There is no valid distinction between scenes

portrayed on film and those portrayed in a book or magazine.

The Fourteenth Amendment to the Constitution of the

United States provides that no state shall commit certain acts

or omissions which in pertinent part is as follows:

“...nor deny to any pesson within its jurisdiction

the equal protection of the laws...

The United States Supreme Court in McLaughlin v.

Florida, 379 U.S. 184, has interpreted this provision to mean:

“When the law lays an unequal hand on those who

have committed intrinsically the same quality of

offense and sterilizes one and not the other, it has

made as insidious a discrimination as if it had selected

a particular race or nationality for oppressive

treatment.”

And in Cox v. Louisiana, 379 U.S. 559, the same Court

reversed a state court conviction and while holding the statute

unconstitutional as a denial of equal protection of the laws

among other reasons had this to say:

“This Court has recognized that the lodging of such

broad discretion in a public official allows him to

determine which expressions of view will be

permitted and which will not. This thus sanctions a

device for the suppression of the communication of

ideas and permits the official to act as a censor.

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‘2

It- is clearly unconstitutional to enable a_ public

official to determine which expressions of view will

be permitted and which will not or to engage in

invidious discrimination among persons or groups

either by use of a statute providing a system of broad

discretionary licensing power, or, as in this case, the

quivalent of such a system by selective enforcement

of an_ extremely broad _ prohibitory _ statute.”

(Emphasis supplied)

28

The United States Supreme Court ruled a Maryland

conviction for disorderly conduct was a denial of equal

protection of the laws in Niemotko v. Maryland, 340 U.S.

268. The Court there had this to say of regulations of First

Amendment freedoms:

“In cases in which there is a claim of denial of rights

under the Federal Constitution, this Court is not

bound by the conclusions of lower courts, but will

reexamine the evidentiary basis on which those

conclusions are founded.

No standards appear any where: no narrowly drawn

limitations; no circumscribing of this absolute power: -

no substantial interest of the community to be

served. It is clear that all that has been said about the

invalidity of such limitless discretion must be equally

applicable here.

The right to equal protection of the laws, in the

exercise of those freedoms of speech and religion

protected by the First and Fourteenth Amendments,

has a firmer foundation than the whims of personal

opinions of a local governing body.”

And in a case styled Griffin v. Illinois, 351 U.S. 12, the

Court ordered the state to supply the defendant with a

transcript as an indigent, concluding the denial of a. free

transcript for an indigent was not affording equal protection

of the laws whereas a person with sufficient means could pay

for the service. The Court reflected upon the evolution of the

right and the Illinois denial thusly:

“These pledges were unquestionably steps toward a

fairer and more nearly equal application of criminal

justice. In this tradition, our own constitutional

guaranties of due process and equal protection both

called for procedures in criminal trials which allow no

invidious discriminations between persons and

different sroups of persons. Both equal protection

and duc process e™nhasize the central aim of our

entire judicial system — all people charged with crime

must, so far as the law is concerned, ‘stand on an

equality before the bar of justice in every American

court.’

Consequently at all stages of the proceedings the Due

Process and Equal Protection Clauses protect persons

like petitioner from invidious discriminations.

Such a denial is a misfit in a country dedicated to

affording equal justice to all and special privileges to

none in the administration of its criminal law.

See also Burns v. Ohio, 360 U.S. 252.

Now applying this arbitrary classification of vendors of

First Amendments materials to the facts therein, we find that

there is created a privileged class upon whom is conferred an

exemption whereby they may be conclusively exempted from

criminal prosecution.

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30

The United States Supreme Court in a case styled Morey

v. Doud, 354 U.S. 457, condemned an Illinois statute for

creating unequal exemptions -_ stated:

“This is not a case in which the Fourteenth

Amendment is being involved to prutcct a business

from the general hazards of competition. The hazards

here have their root in the statutory discrimination.

Taking all these factors in conjunction — the remote

relationship of the statutory classification to the Act’s

purpose or to business characteristics, and the

creation of a closed class by singling out of the

money orders of a named company, with

accompanying economic advantages — we hold that

the application of the Act to appellecs deprives them

of equal protection of the law.”

The Court of Appeals for the State of Maryland in 2 case

styled Police Commissioner of Baltimore City v. Siegel

Enterprizes, 162 A.*4 727 (1960), had before it the Maryland

Obscenity Statute wherein newspapers were not included

within the framework of the proscribed dissemination. The’

Court there held the provision invalid as a denial of equal

‘protection of the laws. The Court held:

“Freedom of the press is directly affected as to one

class of publication but not as to another, and the

classification is made, not on the basis of material

deemed objectionable, but the proportion of that

material to other published matter. The classification,

in my Opinion, is unreasonable, and violates the Equal

Protection Clause of the Fourteenth Amendment.

31

The discriminations between classes of publications

which are infringements of the Equal Protection

Clause inhere in every proysion of the statute.”

The Supreme Court of California also dealt with this

problem in the case of Katzev v. County of Los Angeles, 341

P.2d 310 wherein the Court there found that the statute

applied to the publications but exempted newspapers from its

proscription. The Court there stated:

“The ordinance denies distributors such as plaintiffs

equal protection of the laws, since it establishes

arbitrary and unreasonable exemptions.

Because these exemptions are unrelated to the

Purported purpose of the legislation, they impose an

unfair burden on plaintiffs, thus denying them equal

protection of the laws. An exemption must be

reasonable in order to meet the standard prescribed

by Yick Wo v. Hopkins, . . .

Unlike the exemptions for accounts of crime that are

true or drawn from religious writings, this latter one

is not based on content, nor is it a completely

different form of representing a story. Rather, the

exemption is based solely on the nature of the

product produced on paper.”

Likewise the State of Washington declared a state statute

unconstitutional for containing arbitrary classification. In the

case sivled Adams v. Hinkle, 322 P.2d 844, the Court rejected

the statute for exempting newspapers from comic book

32

tp

licensing requirements although the Court found various other

portions deficient in the area of First Amendment freedoms:

“The Attorney General earnestly contends that this is

a reasonable classification, and that the legislature has

a right to classify if there be a rational basis for the

classification. But this is not so when the equal

protection clause is concerned with a right claimed

under the First Amendment.

When the rights claimed are among those protected

from legislative invasion by the first amendment, the

equal protection clause of the fourteenth amendment

assumes increased importance.

Even if considered separately from a right guaranteed

by the first amendment, the constitutionality of such

a classification is precarious at best.”

The United States Supreme Court in Yick Wo y. Hopkins,

30 L.Ed. 220 at page 225 delineated much of the protection

afforded citizens under the Fourteenth Amendment wherein

the Court stated at page 225; reaffirming its prior decisions:

...in the application of which there was no invidious

discrimination against anyone within the prescribed

limits, all persons engaged in the same business being

treated alike, and subject to the same restrictions, and

entitled to the same privileges, under similar

conditions.

33

... Undoubtedly intended not only that there should

be no arbitrary deprivation of life or liberty, or

arbitrary spilation of property, but that equal

protection and security should be given to all under

like circumstances in the enjoyment of their personal

and civil rights; that all persons should be equally

entitled to pursue their happiness and acquire and

enjoy property; that they should have like access to

the courts of the country for the protection of their

persons and property, the prevention and redress of

wrongs, and the enforcement of contracts; that no

impediment should be interposed to the pursuits of

anyone, except as applied to the same pursuits by

others under like circumstances; that no greater

burdens should be laid upon one than are laid upon

others in the same calling and condition; that in the

administration of criminal justice no different or

higher punishment should be imposed upon one than

such as is prescribed to all for like offenses... Class

legislation, discriminating against some and favoring

others, is prohibited.”

The Defendant is exposed to prosecution under Section

418, while the proprietor or employee of another

establishment is not to be subjected to the provisions of

Section 418 simply for the dissemination of a film which has

no standard in the statute. There can be no reasonable

classification between a magazine, pamphlet, picture, etc., and

a film. Therefore, this statute lays an unequal hand upon

Appellant in relation to other disseminators of First

Amendment publications.

As has been variously enunciated by the Courts, including

the Supreme Court of the United States, “precision of

regulation is the touchstone” in the area of First Amendment

freedoms. Precision in this regulation is completely lacking.

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CONCLUSION

The charging document, a crimina! arrest warrant, charged

this Petitioner with a crime that is not within the statute.

Although the warrant could have been amended prior to trial

this was not done. Under Maryland law the charging

document must stand or fall on its face and any Bill of

Particulars does not form or become part of it nor does the

affidavit upon which it is issued.

The crime charged is possessing with intent to sell

whereas only possessing with intent to distribute is such a

crime. The statute itself defines, under Section 418, the word

“distribute” as “to transfer possession of whether with or

without consideration” so therefore consideration or sale

plays no part in it. Clearly the Motion to Dismiss should have

been granted, since this is the proper way under Maryland law

to have this defense raised.

Even beyond this, the warrant recites the possession with

intent to sell multiple types of printed, graphic and pictorial

matter without even designating the material charged. If this

is not vague or overbroad enough the warrant charge ends

with etc. In that statute there are 21 separate offenses alone.

The warrant also charges the Petitioner with possessing

with intent to sell “indecent” materials which clearly is not

within the statute nor under the Miller standards.

Passing to the statute, the Maryland Court of Appeals has

held in its latest decision immediately preceding Miller that no

sexual act was necessary and that a definition for obscenity

35

may never evolve. That Court following Miller refused to

construe the statute by merely re-affirming its prior decision.

Therefore the Maryland statute here is impermmissibly

overlybroad and vague and therefore repugnant to the

Fourteenth Amendment in_ limiting First Amendment

freedoms.

And finally, this Petitioner is clearly entitled to trial by

Jury which he demanded and was arbitrarily denied.

For all of the above reasons Petitioner prays that this

Honorable Court grant this Petition for Writ of Certiorari and

Motion to Dismiss.

Respectfully submitted,

WILLIAM E. SEEKFORD

Attorney for Petitioner.

A.1

APPENDIX A

IN THE CRIMINAL COURT OF

BALTIMORE

CRIMINAL COURT WARRANT NO. 27301598

State of Maryland

v.

Thomas W. Ayre

Appeal from District Court of Maryland

Warrant No. 150715

MOTION TO DISMISS

TO THE HONORABLE, THE JUDGES OF SAID COURT:

Comes now the Defendant, Thomas W. Ayre, by his

attorney, William E. Seekford, Esquire and moves this

Honorable Court to dismiss the criminal warrant filed against

him and for reasons states:

1. The statutory provisions of Article 27, Section 418 of

the Annotated Code of Maryland, are as written, repugnant to

the First, Fourth, Fifth, Sixth and Fourteenth Amendments

to the Constitution of the United States, because:

a. Said statutory provisions are void for vagueness in that

same forbid or require the doing of an act in terms so vague,

fluid and indefinite that men of common intelligence must

necessarily guess at the meaning and differ as to the

application thereof, and as such are repugnant to the Due

Process provisions of the Fifth and Fourteenth Amendments

to the Constitution of the United States; and further,

b. Said statutory provisions are void for overbreadth by

means which sweep unnecessarily broadly and thereby invade

the area of protected freedoms in that the statute sets forth

no standards for determining and regulating obscenity and

thus are insufficient for those minimum standards prescribed

a el Caen!

A.2

by thé United States Supreme Court in connection with

magazines, publications and materials presumptively protected

under the First and Fourteenth Amendments; and further

c. The said statutory provisions are void for vagueness

and impermissible overbreadth, in the area of First

Amendment freedoms, because the said provisions are

susceptible of sweeping and improper application by law

enforcement officials and have a “chilling and inhibiting

effect” on the exercise of the federal constitutional rights of

citizens of the State of Maryland and the United States, as

well as the Defendant, to publish, distribute, circulate,

possess, sell, receive and exhibit publications: and further,

d. Said statutory provisions are repugnant to the

substantive Due Process provisions of the Fifth and

Fourteenth Amendments to the United States Constitution

because they permit deprivation of liberty and/or property

interests for the exercise of First Amendment rights by

unreasonable, arbitrary, and capricious means by law

enforcement officials of the State of Maryland without a

showing of a real and substantial relationship to any state’s

subordinating interest which is compelling to justify state

action limiting First Amendment freedoms: and further,

e. Said statutory provisions are impermissibly overly

broad and repugnant to the procedural due Process

requirements of the Fifth and Fourteenth Amendments to the

Constitution of the United States by employing means

lacking adequate safeguards which Due Process demands to

assure non-obscene material to the constitutional protection

of the First Amendment to which it is entitled: and further

f. Said statutory provisions are vague and impermissibly

overbroad and thus repugnant to the First, Fourth, Fifth and

Fourteenth Amendments to the Constitution of the United

States in that said statutory provisions permit inherent powers

of censorship and suppression, constituting 4 prior restraint of

the exercise of Defendant's First Amendment rights by law

enforcement officials of the State of Maryland: and further,

A.3

g. Said statutory provisions are void for overbreadth in

that they do not limit the proscribed activities only to public

distribution, but purports to proscribed private viewing and/or

exhibition of presumptively protected First Amendment

materials; and further,

h. That Defendant is denied the equal protection of the

laws in that improper exemptions are permitted by arbitrary

classifications; and further,

2. That the charging document purports to charge a

crime under Article 27, Section 418 which Statutory provision

is not validly in force in the State of Maryland since the

decisions of the United States Supreme Court on June 21,

1973 variously styled as Miller vy. State of California No.

70-73, et seq. formulated specifically the constitutional

requirements in obscenity prosecutions in the United States

limiting such prosecutions to be conducted under statutes that

regulate works in the depiction or description of “hard cord”

sexual conduct which is not present in the statute under

which the Defendant is being prosecuted either as written or

authoritively construed.

3. That this Defendant is being prosecuted under the

Maryland obscenity statute is being proceeded against under

an ex post facto statute in that he was arrested on or about

June 26, 1973 for an alleged offense of that date and is being

prosecuted under a statute which will have to be amended by

judicial interpretation which was both unforseeable and

retroactive in the judicial enlargement of the criminal statute

and further that the ruling will alter the legal rules of

evidence and permits the receiving of less proof and evidence

and of the prosecutions evidence and testimony than the law

required at the time of commission of the offense to the

prejudice of the Defendant contrary to the Due Process

provisions of the Fourteenth Amendment and Article I,

Section 10 of the Federal Constitution.

4. That the charging document fails to inform the

Defendant of what he is called upon to defend and fails to

protect him from future prosecutions by denying him the

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righf to plead any prior acquittal or conviction for the future

Prosecutions and therefore denies to him Due Process of the

laws and fails to identify the books, drawings, pamphlets and

the etcetera therefore.

5. That the criminal warrant is fatally defective and

denies to Defendant the due process of the laws for failure to

set forth the essential elements of the offense including the

name or names to whom this Defendant allegedly sold,

distributed, or offered to distribute any obscene matter or

possessed with intent to sell.

6. That the criminal warrant is fatally defective and

denies to Defendant the Due Process of the laws for failure to

set forth the essential elements of the offense including what

matter is being charged against this Defendant whether it be a

motion film, book, Magazine, newspaper, written material,

picture, drawing, photograph, pictorial representation, statue,

figure, recording, _ transcription, reproduction, articles,

equipment, machine or materials and further that if the

matter be limited to those issued in volumes and publications

numbers or are in any way titled to differentiate various

films, books or items that the criminal warrant fails to specify

what particular issue, volume number or title thing is charged

against this Defendant and therefore places him in defense of

every newspaper issue, magazine issue and volume, every title

book, and every motion Picture film and item present in

existence and therefore is destitute of the necessary

Particularity required in order to permit this Defendant to

Properly prepare the defense in this case and to plead

judgment of acquittal or conviction in bar to any further or

future prosecutions.

7. That the statute under which Defendant is being

charged is void for vagueness and impermissible over breadth

and thereby repugnant to the Provisions of the First, Fifth

and Fourteenth Amendments to the Federal Constitution for

the reason that the Statute fails to properly warn this

Defendant of what actions on his part would come within the

Proscription of this statute and further that the definition of

obscenity is constitutionally deficient as well as all of the

A.5

matter that is purported to be contained within obscenity as

used in Article 27, Section 417 and 418.

8. That the statute aforesaid denies to this Defendant the

equal protection of the laws in that although this Defendant

is neither an officer of the legal entity wherein he was alleged

nor has any financial interest therein other than receiving

salary and wages, he is not entitled to nor granted the right to

claim an exemption from such prosecution while an

individual, although also an employee and who is not an

officer or has a financial interest, in motion picture theaters

are totally and fully exempted from prosecution for the

offenses created under Section 418 as well as those persons

exempted as persons for scientific, educational, governmental

or other similar justification for possessing or distributing

identical

9. That this statute aforesaid and the warrant issued

thereunder charging this Defendant with violations of it is

void for vagueness and impermissible over breadth in that it is

in conflict with the First and Fourteenth Amendments to the

Federal Constitution in regulating freedom of speech and

press as those provisions have been interpreted and standards

enunciated by the Supreme Court of the United States on or

about June 21, 1973 where that Court specifically required

Statutes to define conduct and community standards which

are only applicable for the regulation of works which depict

or describe sexual conduct and that no one will be subject to

prosecution for the sale of exposure of obscene material

unless these materials depict or describe patently offensive

“hard core sexual conduct” specifically defined by the

regulating state law as written or construed, which are specific

pre-requisites to provide fair notice to a dealer in such

materials that his public and commercial activities may bring

prosecution which is not present in the statute and warrant at

bar for the offense occurring on June 26, 1973.

10. That the statute as written and as alternatively

construed fails to only include that particular hard core

pornography from expression protected by the First

Amendment as required by the Supreme Court of the United

States.

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A.6

11. That the statute is void for vagueness and

impermissible over breadth in that there are no provisions for

fair warning to this Defendant as to what constitutes the

community in which the particular alleged conduct occurred

and in which community this Defendant must conform his

activities in order to avoid afronting the local community

standards in any dissemination of presumptively protected

First Amendment materials.

12. That this warrant is fatally defective for failure to

charge this Defendant with an essential element of the crime

of obscenity including scienter, i.e. guilty knowledge of the

contents and character of the materials alleged to be obscene.

13. And for such other and further reasons to be

advanced at the hearing held hereon,

WHEREFORE, Defendant prays this Honorable Court

dismiss the criminal warrant filed against him.

/s/ William E. Seekford,

Attorney for Defendant

SON ee ee Lc Se eT ERG Care A |

A.7

IN THE CRIMINAL COURT

OF BALTIMORE

State of Maryland

v.

Thomas W. Ayre

District Court Appeal No. 37301598

MEMORANDUM OPINION DENYING DEFENDANT'S

MOTION TO DISMISS

HARRIS, J.:

On August 9, 1973, the defendant in the above appeal

was convicted in the District Court .of Maryland, for

Baltimore City, of possession of obscene materials, in

violation of Article 27, Section 418 of the Maryland Code,

and was fined $100. and costs.

When the appeal was scheduled for trial in the Criminal

Court of Baltimore on October 29, 1973, William E.

Seekford, Esq., counsel for the defendant, filed a motion to

dismiss the criminal warrant filed against the defendant.

Argument on the motion was held without the taking of any

testimony, and the decision on the motion was held sub curia

so that the Court could further consider the motion and the

authorities cited by Mr. Seekford in a very comprehensive

brief filed by him.

Although the motion to dismiss includes a substantial

number of allegations, they can be fairly summarized as an

attack upon the arrest warrant which was issued by a judicial

commissioner of the District Court on June 26, 1973, and the

constitutionality of Section 418 of Article 27, particularly in

view of the decision of the U.S. Supreme Court in the case of

Miller v. California, decided on June 2i, 1973, andfour other

A8

cases decided by the Court on that same date — Paris Adult

Theatre I v. Slaton; U.S. v. Orito; Kaplan v. ‘California; and

U.S. v 12 200-ft. Reels of Super 8mm Film.

THE ARREST WARRANT

The arrest warrant which is challenged by the defendant

formally charges the defendant with violation of Section 418

of Article 27, in the following language:

‘‘Unlawfully and knowingly did possess obscéne

and indecent books, drawings, pamphlets, pictures,

etc. with intent to sell in Balto. City, St. of Md.”

Obviously, the arrest warrant itself includes only the

conclusions of the arresting officer. Under the provisions of

Maryland District Court Rule 706 (c) (1), it must be

supported by an application from the arresting officer

showing “probable cause to believe that a crime has been

committed and that the defendant has committed it.”

Following the hearing, the State filed a “Motion to

Supplement Record”, -by the ‘addition of the required

affidavit. This motion was granted. The affidavit alleges that

the defendant sold to the affiant, Police Sergeant Donald

Dougherty, “one ‘The Sex Scene’ volume Book Three for the

price of $5.20. The book shows various Pictorial obscene

sexual activity. Copy of book displayed herewith.” In the

opinion of this Court, this statement of facts showed

sufficient probable cause to justify the issuance of the arrest’

‘warrant. ,

The warrant is also attacked because it allegedly does not

sufficiently inform the defendant of the nature of the offense

with which he is charged. It would appear that the defendant

' matintains that the arrest warfant should include particulars as

to the’ date, time, and place of the alleged commission of the

crime. This Court knows of no authority which requires an

arrest warrant to include a bill of particulars or a bill of

discovery on its fae. This arrest warrant can be likened to

certain types of indictments which, by statute, are specifically

aoa aet ll

A.9

exempted from including in the indictment the type of

particulars which the defendant maintains he is entitled to

receive in this warrant. See, for examples, Article 27. Section

610, concerning indictments for gaming or lotteries; Section

612, concerning indictments for forging, altering, embezzling,

etc.; Section 613, concerning indictments describing money;

Section 614, concerning indictments for the unlawful sale of

liquor or beer; Section 615, concerning indictments for

violation of ordinances; and Section 616, concerning

indictments for murder or manslaughter.

In this case, the arrest warrant complies fully with the

provisions of Maryland District Rule 706 (e) (2), which

requires only “a plain, concise and definite statement of

essential facts constituting each offense charged, and each

formal charge placed against the defendant.”

The arrest warrant being valid, the arrest of the defendant

was lawful. Groh v. Warden, 1 Md. App. 674, 676; Nestor v.

State, 243 Md. 438, 445; Crowe, et al v. State, 240 Md. 144,

151; Bloomhaum v. State, 237 Md. 663, 664.

Article 27, Section 418

The attack by the defendant on the constitutionality of

Section 418 charges that the statute is unconstitutional under

the U.S. Constitution, specifically the First, Fourth, Fifth,

Sixth and Fifteenth Amendments, and that it “is not validly

in force” in Maryland since the above named decisions of the

U.S. Supreme Court on June 21, 1973.

Although the constitutionality of Section 418 has never

been specifically passed upon, Section 418A — with which

Section 418 is directly related -was found to be

constitutional, at least inferentially, by the Court of Appeals,

in the case of Village Books, Inc. vy. State’s Attorney for

Prince George’s County, 263 Md. 76. Moreover, Section 418

is identical with Section 311.2 of the California Penal Code,

which was the basis of the prosecution in Miller v. Cal. supra.

No question was raised concerning the constitutionality of the

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California statute in Miller. It is logical to assume that, if the

California statute was unconstitutional, in view of the U.S.

Supreme Court, it would have so held in the Miller decision.

Nor can this Court discern any reason why Section 418

“is not validly in force” in Maryland since the Miller decision.

In reaffirming Roth v. United States, 354 US. 476, to the

effect that obscene material is not protected by the First

Amendment, Miller also holds that obscene material can be

regulated by the States, subject to the specific safeguards

stated in the opinion, without a showing that the material is

“utterly without redeeming social value”; and further holds

that obscenity is to be determined by applying “contenporary

community standards”, instead of the “national standards’’, as

originally laid down in Jacobellis v. Ohio, 378 US. 184. just

how these holdings render Section 418 of Article 27 invalid is

difficult for this Court to understand. Miller enunciates new

basic guidelines for the trier of fact, as follows:

“(a) whether ‘the average person, applying

contemporary community standards’ would find that

the work, taken as a whole, appeals to the prurient

interest:

“(b) whether the work depicts or describes, in a

patently offensive way, sexual conduct specifically

defined by the applicable state law: and

“(c) whether the work, taken as a whole, lacks

serious literary, artistic, political, or scientific value.”

A later portion of the opinion indicates that, to be

proscribed by Miller, the obscene materials must “depict or

describe patently offensive, ‘hard cord’ sexual conduct |

specifically defined by the regulating state law, as written or

construed” (emphasis added). It is clear that Section 418 does

not specifically define hard core sexual conduct of this

nature. It is equally clear, however, that the Maryland

appellate courts have repeatedly construed Section 418 to

include such materials, under the more rigid tests preceding

A.1]

Miller. Woodruff v. State, 11 Md. App. 101; Dillingham vy.

State, 9 Md. App. 669; Lancaster v. State, 7 Md. App. 602;

Donnenberg v. State, 1 Md. App. 591; Levin v. State, 1 Md.

App. 139; Monfred v. State, 226 Md. 312.

In the opinion of this Court, Section 418 has been

construed by the Maryland courts in such a manner as io

satisfy the requirements of Miller.

For the above reasons, this Court holds that (1) the

arrest warrant issued in this case is valid, and that the ensuing

arrest of the defendant was valid; and (2) Section 418 of

Article 27 of the Maryland Code is constitutional, and is not

rendered invalid by the U.S. Constitution or the five decisions

rendered by the U.S. Supreme Court on June 21, 1973,

particularly Miller v. California, supra.

The defendant’s motion to dismiss the warrant is denied,

therefore, for the above reasons. When the case is tried on its

merits, the question of whether or not the materials alleged to

be possessed by the defendant come within the Miller

definition of hard core sexual conduct, or hard core

pornography, must depend upon the evidence to be offered

by the State.

/s/Charles D. Harris,

Judge

November 5, 1973.

A.12

APPENDIX “‘B”

IN THE COURT OF APPEALS

OF MARYLAND

Miscellaneous Docket No. 12 (Criminal)

September Term, 1974

Thomas M. Ayre

v.

State of Maryland

(Misc. No. 34, September Term, 1973

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

said petition be, and it is hereby, denies as there has been no

showing that review by certiorari is desirable and in the public

interest.

/s/ Robert C. Murphy

Chief Judge

Date: April 11, 1974.

OLA DLE LES

A. 13

APPENDIX “C”

ARREST WARRANT

DISTRICT COURT OF MARYLAND FOR

DISTRICT |

No. 150715

District Court of Maryland

to: Any law enforcement officer authorized to serve criminal

proceedings, GREETINGS.

The sworn application of Sgt. Donald Daugherty of CID

Vice alleges that Thomas Ayre of 1629 Winford Road.

DESCRIPTION OF ACCUSED: Sex M Color W_ Age

36 = Height «=5’7/” Weight 170 Hair Lt Brn.

Eyes Complexion Ruddy

Other: (Scars, tattoos, mustache, infirmities, etc.) .........

7.2 Se S22 FP SSP CSE LEASE PSP HOOPS eCHAOstsee bee vaseaestevesevsew016s

did on or about June 26, 1973 at 428 E. Balto. St.

Unlawfully & knowingly did possess obscene & indecent

books, drawings, pamphlets, pictures, etc. with intent to sell

ee wa ccedarddsswckece

_ (Concise statement of essential facts constituting offense charged)

The said defendant is hereby formally charged with

violation of Code, Art.27, Sec. 4/8, 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.

A. 14

You are, therefore, commanded to arrest the person

charged and to bring him before me or some other judicial

officer as required by law. Hercof fail not or leave you then

and there the warrant.

ecyy Sie |. eee ee BAN ete es day of

/s/ (legible)

4 Judicial Commissioner.

F NOTICE TO PERSON ARRESTED

You do not have to say anything to anyone about any

$ charge which as been placed against you, and anything you do

; say may be used against you in court.

3

4 You have the right to consult with a lawyer before the

: police start questioning you and to have a lawyer present

3 while the police are questioning you. If the police are

4 questioning you and a lawyer is not present, you may have

the questioning stopped so that you may talk to a laywer.

You also have the right to consult with your family or

friends. If you are being questioned or held and you want to

talk to your family or friends or to a lawyer, you will be

allowed to use a telephone, if necessary.

Steele ieee hak ay

If you want a lawyer but cannot afford to pay for one,

you may have the right to have one assigned to represent you

free of charge, if the crimes with which you are charged are

serious enough. A judge or a District Cou’t commissioner or

the Public Defender’s Office can tell you whether you are

eligible for a court-assigned laywer.

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A. 15

the above warrant by arresting the defendant or personally

delivering to him and leaving with him a copy of the warrant.

/s/ Donald Dougherty

(Arresting Officer)

Sgt.

601 E. Fayette Street.

Trial 7/25/73

Continue Own Recog.

adic al loin elacrynts Saha eR RE

A. 16

APPENDIX “D”

CONSTITUTION OF THE UNITED STATES

AMENDMENTS TO THE CONSTITUTION.

[AMENDMENT I]

[Freedom of Religion, of Speech, and of the Press|

Congress shall make no law respecting an establishment of

religion or prohibiting the free exercise thereof; or abridging

the freedom of speech, or of the press; or the right of the

people peaceably to assemble, and to petition the Government

for a redress of grievances.

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[AMENDMENT IvVj

[Security from Unwarrantahle Search and Seizure |

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the

persons or things to be seized.

[AMENDMENT V]

[Rights of Accused in Criminal Proceedings |

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the land

A. 17

or naval forces, or in the Militia, when in actual service in

time of War or public danger; nor shall any person be subject

for the same offense to be twice put in jeopardy of life or

limb: nor shall be compelled in any criminal case to be a

witness against himself, nor be deprived of life, liberty, or

property, without due process of law: nor shall private

property be taken for public use, without just compensation.

[AMENDMENT VI]

[Right to Speedy Trial, Witnesses, etc. |

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of the

State and district wherein the crime shall have been

committed, which district shall have been previously

ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the witnesses

against him; to have compulsory process for obtaining

witnesses in his favor, and to have the Assistance of Counsel

for his defense.

**££KEEE

[AMENDMENT XIV]

Section 1.

[Citizenship Rights Not to Be Abridged by States |

All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside. No State shall

make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States: nor shall any

State deprive any person of life, liberty. or property, without

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jurisdiction he equal protection of the laws.

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ANNOTATED CODE OF MARYLAND

ARTICLE 27,

OBSCENE MATTER

§ 417. Definitions.

As used in this subtitle,

(1) “Matter” means any book, magazine, newspaper, or

other printed or written material or any picture, drawing,

photograph, motion picture, or other pictorial representation

or any statue or other figure, or any recording, transcription,

or mechanical, chemical or electrical reproduction or any

other articles, equipment, machines or materials.

(2) “Person”” means any individual, partnership, firm,

association, corporation, or other legal entity, but shall not be

construed to include an employee of any _ individual,

partnership, firm, association, corporation, or other legal

entity operating a theatre which shows motion pictures if the

employee is not an officer thereof or has no financial interest

therein other than receiving salary and wages.

(3) “Distribute” means to transfer possession of, whether

with or without consideration.

(4) “Knowingly”” means having knowledge of the

character and content of the subject matter.

due process of law; nor deny to any person within its

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A. 19

§ 418. Sending or bringing into State for sale or

distribution; publishing, etc., within State.

Every person who knowingly sends or causes tu be sent,

or brings or causes to be brought, into this State for sale or

distribution, or in this State prepares, publishes, prints,

exhibits, distributes, or offers to distribute, or has in his

possession with intent to distribute or to exhibit or offer.to

distribute, any obscene matter is guilty of a misdemeanor.

§ 423. Exemptions.

The prohibitions and penalties imposed in this subtitle

shall not extend to persons having bona fide scientific,

educational, governmental, or other similar justification for

possessing such matter, or to distributions thereof pursuant to

such justification.

§ 424. Penalty.

Violation of this subtitle is punishable upon conviction by

fine of not to exceed one thousand dollars ($1,000.00) or by

imprisonment for not to exceed one year, or both. Any

subsequent conviction of a violation of this subtitle is

punishable by a fine of not to exceed five thousand dollars

($5,000.00) or by imprisonment for not to exceed three

years, or both.

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