HOPKINS v. STATE

193 Md. 489, 69 A.2d 456 (1949)

Decided November 9, 1949.

Motion for rehearing and/or modification of opinion filed November 17, 1949.

Motion for rehearing granted December 6, 1949.

Modified opinion filed January 11, 1950.

The cause was argued before MARBURY, C.J., DELAPLAINE, COLLINS, GRASON, HENDERSON, and MARKELL, JJ.

DELAPLAINE, J., delivered the following modified opinion of the Court.

This appeal was taken by the Rev. William F. Hopkins, of Elkton, from the judgment of conviction entered upon the verdict of a jury in the Circuit Court for Cecil County for violation of the statute making it unlawful to erect or maintain any sign intended to aid in the solicitation or performance of marriages. Laws of 1943, ch. 532, Code Supp. 1947, art. 27, sec. 444A.

The State charged that on September 1, 1947, defendant maintained a sign at the entrance to his home at 148 East Main Street in Elkton, and also a sign along a highway leading into the town, to aid in the solicitation and performance of marriages. Four photographs were admitted in evidence. One photograph, taken on an afternoon in September, 1947, shows the sign in Elkton containing the name "Rev. W.F. Hopkins." Another, taken at night shows the same sign illuminated at night by electricity. The third shows the other sign along the highway containing the words, "W.F. Hopkins, Notary Public, Information." The fourth shows this sign illuminated at night.

The State showed that during the month of August, 1947, thirty ministers performed 1,267 marriages in Cecil County, and of this number defendant performed 286, only three of which were ceremonies in which the parties were residents of Cecil County.

Defendant did not testify. Several witnesses, however, testified that, though he has been residing in Elkton, he has been serving as the pastor of a church with about 40 members in Middletown, Delaware, known as the First Home Missionary Church.

[193 Md. 495] First. [Defendant-appellant’s First Amendment free exercise of religion argument is omitted.]

Second. Defendant contended that the judge erred in excluding testimony offered to show that the State's Attorney advised him in 1944 before he erected the signs, that they would not violate the law. It is generally held that the advice of counsel, even though followed in good faith, furnishes no excuse to a person for violating the law and cannot be relied upon as a defense in a criminal action. Forwood v. State, 49 Md. 531, 538; Miller v. United States, 4 Cir., 277 F. 721. Moreover, advice given by a public official, even a State's Attorney, that a contemplated act is not criminal will not excuse an offender if, as a matter of law, the act performed did amount to a violation of the law. State v. Foster, 22 R.I. 163, 46 A. 833, 50 L.R.A. 339; Staley v. State, 89 Neb. 701, 131 N.W. 1028, 34 L.R.A., N.S., 613; State v. Whiteaker, 118 Or. 656, 247 P. 1077. These rules are founded upon the maxim that ignorance of the law will not excuse its violation. If an accused could be exempted from punishment for crime by reason of the advice of counsel, such advice would become paramount to the law.

While ignorance of fact may sometimes be admitted as evidence of lack of criminal intent, ignorance of the law ordinarily does not give immunity from punishment for crime, for every man is presumed to intend the necessary and legitimate consequences of what he knowingly [193 Md. 499] does. In the case at bar defendant did not claim that the State's Attorney misled him regarding any facts of the case, but only that the State's Attorney advised him as to the law based upon the facts. Defendant was aware of the penal statute enacted by the Legislature. He knew what he wanted to do, and he did the thing he intended to do. He claims merely that he was given advice regarding his legal rights. If there was any mistake, it was a mistake of law and not of fact. If the right of a person to erect a sign of a certain type and size depends upon the construction and application of a penal statute, and the right is somewhat doubtful, he erects the sign at his peril. In other words, a person who commits an act which the law declares to be criminal cannot be excused from punishment upon the theory that he misconstrued or misapplied the law. Levar v. State, 103 Ga. 42, 29 S.E. 467, 470; Lewis v. State, 124 Tex. Cr. R. 582, 64 S.W.2d 972, 975. For these reasons the exclusion of the testimony offered to show that defendant had sought and received advice from the State's Attorney was not prejudicial error.

Third. [Defendant-appellant’s evidentiary argument is omitted.]

Judgment affirmed, with costs.