Jones v. State
Jones v. State
Opinion of the Court
Opinion by
This case involves a constitutional challenge to the legal sufficiency of the statutory form of charging document for the crime of theft, as authorized by Maryland Code (1957, 1982 Repl.Vol.), Art. 27, § 344(a).
I
By chapter 849 of the Acts of 1978, codified as §§ 340-344 of Art. 27, the General Assembly of Maryland, effective July 1, 1979, consolidated a number of theft-related offenses (not involving force or coercion) into a single newly created statutory offense known as theft. Section 341 specifies that “[c]onduct designated as theft” under the Act’s provisions “constitutes a single crime embracing, among others, the separate crimes heretofore known as larceny, larceny by trick, larceny after trust, embezzlement, false pretenses, shoplifting, and receiving stolen property.” Section 342 enumerates five different types of criminal conduct as constituting theft under the statute, i.e., (a) obtaining or exerting unauthorized control;
‘that A—B on the......day of........, 19____, in the County (City) aforesaid, did steal (here specifying the property or services stolen) of C—D, having a value of (less than $300 or greater) in violation of Article 27, § 342, of the Annotated Code of Maryland; 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.’ ”
The Act was drafted by the General Assembly’s Joint Subcommittee on Theft Related Offenses. In its October 1978 Report, the Subcommittee made clear that it was the statute’s purpose “to eliminate [the] technical and absurd distinctions that have plagued the larceny related offenses and produce^ a plethora of special provisions in the criminal law (p. 2)”; that in creating a single offense designated as “theft,” it was the legislative purpose “that previously existing larceny-related theft offenses are consolidated into this one offense (p. 29)”; that the consolidation made possible the use of a simplified indictment form, as contained in § 344(a), with the result that “[p]etty distinctions which formerly provided the basis of separate and distinct crimes have been abolished (p. 30)”; that various subsections of § 342 present “set[s] of circumstances” which constitute
II
Appellant Jones was indicted on April 8, 1982 by the Grand Jury for Montgomery County for the crime of theft. In conformity with the statutory form of indictment prescribed by § 344(a), it was alleged that Jones
“on or about August 24, 1981, in Montgomery County, Maryland, unlawfully did steal a watch, rings, silver dollars, and other personal property, of David Weinstein, having the value of Three Hundred Dollars ($300.00) or greater, in violation of Article 27, Section 342 of the Annotated Code of Maryland, 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.”
Jones moved to dismiss the indictment. He claimed that as the State failed to allege the elements of the substantive offense in the indictment, including the requisite specific intent or the applicable subsection of the theft statute, it was fatally defective for failing to apprise him of the specific offense with which he was charged. Jones also demanded a bill of particulars, alleging that, theft under § 342 could be committed “in at least five major methods,” each of which was separate and distinct, requiring separate and distinct elements of proof. Jones asserted in his demand for particulars that in order for him to properly plead to and defend against the charge, the State must provide particulars indicating the subsection of § 342 under which he was charged, together with the manner in which he was alleged to have committed the crime.
The Circuit Court for Montgomery County denied the motion to dismiss. The record does not disclose the court’s action with regard to the bill of particulars but the parties agree that Jones never received the response which he sought. Jones was convicted of theft by a jury and appealed. The Court of Special Appeals in an unreported opinion, relying upon its earlier decision in Whitehead v. State, 54 Md.App. 428, 458 A.2d 905, cert. denied, 296 Md. 655 (1983), affirmed the judgment. It reasoned that § 342 specified five different acts through which the crime of theft could be committed; that the effect of charging the offense in the approved language of § 344(a) was to incorporate by reference those elements of the crime which were enumerated in § 342; that there is no requirement that the specific means by which the offense was committed be set forth in the indictment; that Jones was not unaware of which act the State sought to prove, since full discovery had been provided to him; and that Jones had adequate notice through the language of the indictment of the acts that he had allegedly committed. By certiorari petition, which we granted, 299 Md. 492, 474 A.2d 917 (1984), Jones raised a single issue for our review: whether use of the statutory short form indictment for theft prescribed by § 344(a) violated his “constitutional rights to a charging document that sufficiently advised him of the alleged misconduct and set out the essential elements of the offense.”
Jones attacks the constitutionality of his theft indictment in several able and well-crafted arguments. He asserts that because of the wide diversity of elements which comprise the crime of theft under § 342, a charging document which merely states that the defendant “did steal” specified property of the named victim in violation of the statute does not sufficiently inform him of the essential elements of the crime with which he is charged. Thus, he contends, the charging document was not in compliance with the constitutional standards of Art. 21 of the Maryland Declaration of Rights and the Sixth and Fourteenth Amendments to the Federal Constitution.
With numerous citations to our cases, Jones maintains that as the primary purpose of a charging document is to satisfy the constitutional right to fair notice of the charges, it must (a) characterize the offense by setting forth its essential elements and (b) advise the accused of the particular criminal conduct allegedly committed. Neither of these constitutionally mandated requirements, Jones says, is met by charging the offense of theft in the language of § 344(a). He argues that the indictment did not specify how and with what intent he “stole” the victim’s property, thereby leaving him uninformed as to which subsection of § 342 was allegedly violated. Thus, Jones says that he was improperly required in preparing his defense to anticipate evidence that might, for example, show that he unauthorizedly:
“took the property perhaps intending to keep it, perhaps only to use it temporarily and then return it (Section 342(a)); that he swindled [the victim] to obtain the proper*332 ty (Section 342(b)); that he acquired it by altering a label (Section 342(b)); that he possessed it knowing it had previously been stolen (Section 342(c)); and that he found it, knew it was [the victim’s] and at some point intended to keep it permanently (Section 342(d)).”
Jones urges that no legislative enactment can be sustained which, as with § 344(a), permits a form of indictment so abbreviated as to give no indication of the specific character of the alleged criminal act. He argues that because criminality under the theft statute may turn on the precise means by which, or circumstances in which, the individual effectuates his intent to appropriate, the means and circumstances are themselves essential elements of the crime which must be set forth in the charging document. Jones points out that the word “steal” in the § 344(a) short form indictment is not defined in the statute, nor is it used in § 342. He contends that because the word has more than one meaning, it cannot by implication encompass all the essential elements of theft as delineated in § 342. Nor, he says, does a § 344(a) charging document provide the “definite statement of the essential facts of the offense” required by Md.Rule 4-202(a) in implementation of the constitutional mandate of Art. 21 of the Declaration of Rights.
Jones advances the further contention that a § 344(a) indictment is fatally duplicitous because in a single count it disjunctively alleges many different acts, each being determinative of the character of the offense, with some of the acts being incompatible with others. Such an indictment, it is claimed, cannot perform its essential constitutional function of informing the accused of the charges against him. Moreover, according to Jones, where there is some evidence of both prongs of a duplicitous count, a general verdict of guilty would not disclose whether the jury found the accused guilty under one prong, the other, or both, thereby depriving the accused in a future prosecution of the ability to interpose a plea of former jeopardy or collateral estoppel.
At least thirty-five states, in addition to Maryland, have enacted consolidated theft-related statutes.
“a term of art, and includes the criminal taking or conversion in either of the three ways above-named; and hence the indictment is sustained, so far as respects the criminal nature of the taking or conversion, by proof of any kind of larceny, embezzlement, or criminal taking by means of false pretenses. If it be objected that this construction makes the indictment so indefinite that the accused is not sufficiently informed of the nature of the charge which he is called upon to meet, the answer is that it is provided in the same statute that ‘the court may, upon the arraignment of the defendant, or at any later stage of the proceedings, order the prosecution to file a statement of such particulars as may be necessary to give the defendant and the court reasonable knowledge of the nature and grounds of the’ accusation____” 68 N.E. at 347.
See also Commonwealth v. Kiernan, 348 Mass. 29, 201 N.E.2d 504, 507 (1964), cert. denied sub nom, 380 U.S. 913, 85 S.Ct. 901, 13 L.Ed.2d 800 (1965).
Under the Oregon consolidated theft statute, an indictment which charges the defendant with having “knowingly, unlawfully and feloniously” committed the crime of “theft,” without delineating the particular way or manner in which the theft was committed, was upheld against attack on the state constitutional ground that the accused was not informed of the nature and cause of the accusation. See State v. Jim, 13 Or.App. 201, 508 P.2d 462 (1973) where the
The Official Comment to Arkansas’ consolidated statute notes that an indictment or information need only charge the defendant with “theft,” specifying additional information, such as the subject matter and victim of the theft, sufficient to fairly apprise the accused of the case against him. There is no requirement that the indictment allege the particular manner of theft. In a similar vein, the New York statute provides that in a prosecution for the consolidated offense of larceny (other than extortion), it is sufficient if the indictment alleges that the defendant “stole property of the nature or value required for the commission of the crime charged, without designating the particular way or manner in which such property was stolen or the particular theories of larceny involved.” The Idaho statute is markedly similar to the New York statute.
Y
A primary purpose to be fulfilled by a charging document under Maryland law is to satisfy the constitutional requirement of Article 21 of the Declaration of Rights that each person charged with a crime be informed of the accusation against him, first, by characterizing the crime and, second, by so describing it as to inform the accused of the specific conduct with which he is charged. Williams v. State, 302 Md. 787, 490 A.2d 1277 (1985); State v. Morton, 295 Md. 487, 456 A.2d 909 (1983); Ayre v. State, 291 Md. 155, 433 A.2d 1150 (1981). The common law rule in Maryland, applicable in cases involving statutory short form indictments, is that a charging document must allege the
We share the views so well expressed in Whitehead. The question before us is whether the indictment is constitutionally deficient, not whether it could have charged the offense with greater particularity. We think the unspecified elements of the crime of theft, as enumerated in
It is readily evident from the language of the consolidated theft statute, and from its underlying history, that the legislature made “stealing” property or services of another of a designated value a single criminal offense. Consistent with Maryland law, the legislatively approved indictment form does not require an express recital of the manner or means of committing the offense; that information, if not otherwise provided by the prosecutor, was deemed obtainable through a bill of particulars.
In this case, unlike in Whitehead, no bill of particulars was provided to the accused even though one was requested. With open file discovery methods now being utilized by many prosecutors, the need for a bill of particulars in theft indictments has undoubtedly been greatly reduced. Nevertheless, in view of the statute’s history, where such a bill is requested, even though open file discovery is permitted and completed, the trial judge
Nor is there merit in Jones’ claim that the indictment was duplicitous as charging more than one offense in the same count and thus incapable of performing its constitutional function of informing the accused of the charges against him. In effect, the indictment charged the single crime of theft conjunctively, rather than disjunctively, by any or all of five different methods; the offense could be proved under the provisions of § 341 by evidence that it was committed in any manner that would constitute theft under § 342. It has been held that where a statute forbids the doing of any of several acts conjunctively, a charging document alleging more than one act in a single count is not duplicitous. See Thanos v. State, 282 Md. 709, 387 A.2d 286 (1978); Bonneville v. State, 206 Md. 302, 111 A.2d 669 (1955); Sturgill v. State, 191 Md. 75, 59 A.2d 763 (1948).
As § 342 comprises the single crime of theft, Jones is protected from further prosecution for stealing the property particularized in the indictment. Consequently, the State cannot retry him for another violation of § 342 with regard to the same property. Should the State attempt a second prosecution, Jones could effectively bar retrial by simply producing the indictment and verdict in his first trial. State v. Morton, supra, 295 Md. at 494, 456 A.2d 909; Spector v. State, 289 Md. 407, 424, 425 A.2d 197, cert. denied, 452 U.S. 906, 101 S.Ct. 3032, 69 L.Ed.2d 407 (1981).
JUDGMENT AFFIRMED, WITH COSTS.
. Section 342(a) provides that a person commits the offense of theft "when he willfully or knowingly obtains control which is unauthorized or exerts control which is unauthorized over property of the owner, and:
(1) Has the purpose of depriving the owner of the property; or
*327 (2) Willfully or knowingly uses, conceals, or abandons the property in such manner as to deprive the owner of the property; or
(3) Uses, conceals, or abandons the property knowing the use, concealment, or abandonment probably will deprive the owner of the property.”
. Section 342(b) provides that a person commits the offense “when he willfully or knowingly uses deception to obtain and does obtain control over property of the owner, and:
(1) Has the purpose of depriving the owner of the property; or
(2) Willfully or knowingly uses, conceals, or abandons the property in such manner as to deprive the owner of the property; or
(3) Uses, conceals, or abandons the property knowing such use, concealment, or abandonment probably will deprive the owner of the property.”
. Section 342(c) provides that a person commits the offense of theft "if he possesses stolen personal property knowing that it has been stolen, or believing that it has probably been stolen, and:
(i) Has the purpose of depriving the owner of the property; or
(ii) Willfully or knowingly uses, conceals, or abandons the property in such manner as to deprive the owner of the property; or
(iii) Uses, conceals, or abandons the property knowing such use, concealment, or abandonment probably will deprive the owner of the property.”
. Section 342(d) provides that a person commits the offense of theft "when he obtains control over property of another which he knows to have been lost or mislaid, or to have been delivered under a mistake as to the identity of the recipient or nature or amount of the property if he:
(1) Knows or learns the identity of the owner or knows, or is aware of, or learns of a reasonable method of identifying the owner; and
(2) Fails to take reasonable measures to restore the property to the owner; and
(3) Has the purpose of depriving the owner permanently of the use or benefit of the property either when he obtains the property, or at any later time.”
. Section 342(e) provides that a person commits the offense of theft “when he obtains the services of another which are available only for compensation by:
(1) Deception; or
(2) Knowing that the services are provided without the consent of the person providing them.”
. Article 21 requires that in all criminal prosecutions the accused has a right “to be informed of the accusation against him.” The Sixth Amendment, applicable to the states through the Fourteenth Amendment, contains the similar requirement that an accused “be informed of the nature and cause of the accusation.” See Thanos v. State, 282 Md. 709, 716, 387 A.2d 286 (1978); Pearlman v. State, 232 Md. 251, 257, 192 A.2d 767 (1963).
. Ala.Code § 13A-8-2 (1975); Alaska Stat. § 11.46.110 (1962); Ariz. Rev.Stat.Ann. § 13-1802 (Supp. 1984); Ark.Stat.Ann. § 41-2202 (1947); Cal.Penal Code § 484 (West Supp. 1985); Col.Rev.Stat. § 18-4-401 (1973) ; Conn.Gen.Stat. tit. 53a § 119 (1985); Del.Code Ann. tit. 11 §§ 841-859 (1974); Fla.Stat.Ann. § 812.014 (West Supp. 1985); Ga. Code Ann. § 16-8-2 (1984); Hawaii Rev.Stat. §§ 708-830 and 708-835 (1976); Idaho Code § 18-2401 (Supp. 1984); Ill.Ann.Stat. ch. 38 § 16-1 (Smith-Iiurd Supp.1984-1985); Iowa Code Ann. § 714.1 (West 1976); Kan.Stat.Ann. §§ 21-3701 to 21-3704 (1981); Ky.Rev.Stat.Ann. §§ 514.010 to 514.120; La.Rev.Stat.Ann. § 14:67 (West 1981); Me.Rev. Stat.Ann. tit. 17-A, § 351 (1964); Mass.Ann.Laws ch. 266, § 30 (Law. Co-op. 1980); Minn.Stat.Ann. §§ 609.52 to 609.55 (West 1963); Mo. Ann.Stat. § 570.030 (Supp. Vernon 1985); Mont.Code Ann. § 45-6-301 (1979); Neb.Rev.Stat. § 28-510 (1979); N.H.Rev.Stat.Ann. § 637:1 (1974) ; N.J .Stat.Ann. § 2C:20-2 (West 1978); N.Y.Penal Law art. 155 (1984); N.D.Cent.Code § 12.1-23-01 (1976); Ohio Rev.Code Ann. § 2913.02 (Page 1982); Or.Rev.Stat. §§ 164.015 and 164.025 (1983); Pa.Cons.Stat.Ann. tit. 18, § 3902 (Purdon (1972); S.D. Codified Laws Ann. tit. 22 § 30A-15 (1979); Tex.Penal Code Ann. § 31.02 (Vernon 1980); Utah Code Ann. § 76-6-403 (1953); Wash.Rev.Code § 9A.56.-020 (1983); Wis.Stat.Ann. § 943.20 (West 1981).
. Alaska, Arkansas, Idaho, Maine, Nebraska, New Hampshire, New Jersey, Oregon, Pennsylvania, South Dakota, and Utah.
. "(1) Consolidation of Theft Offenses. Conduct denominated theft in this Article constitutes a single offense. An accusation of theft may be supported by evidence that it was committed in any manner that would be theft under this Article, notwithstanding the specification of a different manner in the indictment or information, subject only to the power of the Court to ensure fair trial by granting a continuance or other appropriate relief where the conduct of the defense would be prejudiced by lack of fair notice or by surprise.”
. The common law rule may, within constitutional constraints, be changed or modified by legislative enactment or judicial decision where it is found to be a vestige of the past, no longer suitable to the circumstances of our people. Felder v. Butler, 292 Md. 174, 438 A.2d 494 (1981); Adler v. American Standard Corp., 291 Md. 31, 432 A.2d 464 (1981); Condore v. Prince George’s Co., 289 Md. 516, 425 A.2d 1011 (1981).
. The constitutional sufficiency of an indictment for sixth amendment purposes, as stated by the Supreme Court in Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 72 L.Ed. 861 (1932), is not determined by whether the indictment "could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged” and sufficiently apprises the defendant of what he must be prepared to meet. 285 U.S. at 431, 52 S.Ct. at 419. In Hagner, a mail fraud prosecution, the indictment failed to charge the element of delivery. After nothing that “[t]he rigor of old common-law rules of criminal pleading has yielded, in modern practice, to the general principle that formal defects, not prejudicial, will be disregarded,” id., the Court held that a presumption of delivery arose from the fact that the indictment expressly alleged that the letter was placed in the post office.
Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) involved an indictment for using the United States mails to carry obscene publications. It was there claimed that the allegation of obscenity did not adequately inform the accused of the charge. The Supreme Court concluded that the word "obscene” as used in the indictment was a “legal term of art,” the meaning of which did not change with every indictment and that the term was sufficiently definite in legal meaning to give the accused notice of the charge against him. 418 U.S. at 118, 94 S.Ct. at 2908. Moreover, the Court held that the various component parts of the constitutional definition of obscenity need not be alleged in the indictment in order to establish its legal sufficiency. Id. at 119, 94 S.Ct. at 2908.
. The cases are State v. White, 431 S.W.2d 182 (Mo. 1968) and Gorman v. State, 634 S.W.2d 681 (Tex.Cr.App. 1982).
Concurring Opinion
concurring.
I concur in the result on the narrow ground that the statutory form for charging the offense of theft set forth in Md.Code (1957, 1982 Repl.Vol.), Art. 27, § 344(a) satisfies the constitutional notice requirements embodied in Article 21 of the Maryland Declaration of Rights. I do not, however, subscribe to the reasoning employed by the Court in reaching its conclusion. For this reason, I write separately.
In its campaign of late to reject challenges to the sufficiency of charging documents, the Court, in my judgment, has effectively ignored the constitutional right of a defendant to be informed of the accusation against him. Williams v. State, 302 Md. 787, 794, 490 A.2d 1277, 1281 (1985) (Cole, J., dissenting); Hall v. State, 302 Md. 806, 809, 490 A.2d 1287, 1288 (1985) (Cole, J., dissenting). This organic constitutional requirement, contained in both Article 21 and the sixth and fourteenth amendments of the federal Constitution, serves in part to put the defendant on notice of what he is called upon to defend by characterizing and describing the crime, and to protect the defendant from future prosecution for the same crime. See Ayre v. State, 291 Md. 155, 163, 433 A.2d 1150, 1155 (1981). To better understand what is and what is not involved in this case, it is necessary to contrast Williams v. State, supra, to the instant case.
The charging document in Williams purported to charge the common law offense of armed robbery by averring that the defendant “did rob” the victim of certain personal property. Although that charging document omitted the essential mental element of that offense, and despite the State’s failure to comply with the statutory short form for that common law offense under § 489 of Art. 27, the majority in Williams nonetheless found that that indictment passed constitutional muster. The Williams Court based this conclusion on the theory that the “common parlance” of “did rob” inferentially supplied the missing mental element for armed robbery. In so doing, the majority in that case by judicial fiat emasculated the constitutional
Unlike the common law offense of armed robbery in Williams, this case involves the statutory offense of theft. In 1978, the General Assembly consolidated various common law larceny related offenses into a single offense designated as theft. See 1978 Md.Laws 849; see also Sibert v. State, 301 Md. 141, 145-46, 482 A.2d 483, 485-86 (1984) (discussing consolidated theft statute). One purpose of this consolidation was to abolish the “[p]etty distinctions which formerly provided the basis of separate and distinct crimes” so that prosecutors could use the simplified charging document form contained in § 344(a) of Art. 27. See Revision of Maryland Theft Laws and Bad Check Laws 30, ch. 849 of Acts of 1978, Md.Spec.Rpts. (Joint Subcommittee on Theft Related Offenses Oct. 1978) [hereinafter cited as Maryland Revision]. This simplified form provides:
(a) Indictment, information, warrant, or other charging document.—In any indictment, information, warrant, or other charging document for theft it is sufficient to use a formula substantially to the following effect: “that A—B on the ...... day of ........., 19____, in the County (City) aforesaid, did steal (here specifying the property or services stolen) of C—D, having a value of (less than $300 or greater) in violation of Article 27, § 342, of the Annotated Code of Maryland; 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.”
In my view, the averment that the defendant “did steal” specified property of the named victim in violation of § 342 of Art. 27 sufficiently informs the defendant of the essential or material elements of the crime with which he is charged. The General Assembly is authorized to change or abrogate the common law as it may think most conducive to the general welfare, provided it does not in the process run
Reference
- Full Case Name
- Dana Eugene JONES v. STATE of Maryland
- Cited By
- 67 cases
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- Published