McMorris v. State , 277 Md. 62 ( 1976 )

Smith, J.,

delivered the opinion of the Court. O’Donnell, J., dissents and filed a dissenting opinion at page 72 infra.

We shall here affirm a determination by the Court of Special Appeals in McMorris v. State, 26 Md. App. 660, 338 A. 2d 912 (1975), that the prosecution of appellant, Lee Andrew McMorris (McMorris), was not barred by limitations.

On August 21, 1973, a warrant was issued out of the District Court of Maryland for Baltimore County charging that McMorris “on or about 1-23-73 . . . did conspire with Herman Green & Walter Smith to sell heroin to Det. Ken Redding . . . .” McMorris was apprehended on June 14, 1974. On July 22, 1974, the Grand Jury for Baltimore County indicted McMorris on three counts. In each instance the acts were alleged to have occurred on January 23, 1973. The first count charged a conspiracy with Green and Smith to unlawfully distribute heroin. This count was withdrawn from the jury by the trial judge. The second count charged a conspiracy with the same persons “to violate the controlled dangerous substance laws of the State of Maryland, being Article 27, Sections 276-302 . . . .” The third count alleged unlawful distribution of heroin. The jury returned guilty verdicts on the second and third counts. Since the third count involved a felony, no contentions have been raised relative to the statute of limitations as applied to the prosecution under it.

The relevant statute of limitations in effect on the date of the conspiracy was Code (1957, 1972 Repl. Vol.) Art. 57, § 11, which then read in pertinent part:

“No prosecution or suit shall be commenced for any fine, penalty or forfeiture, or any misdemeanor, except those punished by confinement in the penitentiary, unless within one year from the time of the offense committed . . . .”

This section was repealed effective January 1, 1974, by Chapter 2, § 2 of the Acts of the First Special Session of 1973, so that on the date of the indictment the pertinent statute was Code (1974) § 5-106 (a) Courts and Judicial Proceedings Article. It provides that “a prosecution for a misdemeanor not made punishable by confinement in the penitentiary by statute shall be instituted within one year after the offense was committed.” ¹ The Court of Special Appeals said it “perceive[d] no legislative intent to change the effect and meaning of the statute of limitations in the recodification.” We agree. Accordingly, under the holding of this Court in Archer v. State, 145 Md. 128, 136-37, 125 A. 744 (1924), the prosecution here would be barred unless commenced or instituted within one year from the date of the end of the conspiracy. We granted the writ of certiorari “limited solely to the question whether the trial court erred in rejecting [McMorris’] motion for judgment of acquittal in that the prosecution for conspiracy was barred by the statute of limitations . . . .”

McMorris here advances three arguments, (1) that “[t]he State elected to abandon its prosecution under the arrest warrant and therefore the warrant did not prevent the running of the statute of limitations,” (2) that “[t]he offense charged in the arrest warrant was not the offense for which [McMorris] was convicted and therefore the warrant could not toll the statute as to the latter offense,” and (3) that “[c]ount two of the indictment was so defective that it was invalid and therefore incapable of tolling the statute.” We do not regard the last argument as having been raised by the petition for certiorari and thus encompassed in the grant.²

Statutes of limitation are said in 1 Wharton, Criminal Law and Procedure (Anderson, 1957) § 184 at 426 to fall into three categories. The Maryland statute is in the second category, “statutes which do not refer to the time of the finding of an indictment or the filing of information, but merely provide that prosecutions must be commenced within a specified time . . . .” Therefore, the inquiry here must be whether the prosecution was “commenced” or “instituted within one year” of the date of the offense. The two remaining questions presented by McMorris are merely different ways of stating the same basic question.

Our holding here today was forecast by the holdings of our predecessors in Hahn v. State, 188 Md. 166, 52 A. 2d 113 (1947); State v. Kiefer, 90 Md. 165, 44 A. 1043 (1899); and Neff v. State, 57 Md. 385 (1882). In Kiefer the Court said that “the main question in the case .. . [was] whether the presentment, assuming it to be a valid presentment, or the indictment, is the commencement of the prosecution within the meaning of our statute of limitations applicable to prosecutions for misdemeanors (Art. 57, sec. 10). . . .” The portion of Code (1957) Art. 57, § 11 which we have quoted is the exact language of § 10 as it then stood. In Kiefer the Court said:

“[W]e think upon a proper construction of our statute that the filing of the presentment should be considered the commencement of the prosecution. We know of no rule of construction which requires us to limit the ordinary and plain meaning of words used in statutes regulating criminal proceedings. On the contrary, the rule is that such language, although to be construed strictly, yet it should be given its plain meaning. Sutherland Stat. Construction, sec. 349. Now it is evident that the period of limitation within which a prosecution for a misdemeanor must be brought is the same as that prescribed for the bringing of a suit for any fine, penalty or forfeiture, because these two separate proceedings are included in the same section — and the period of limitation for both of them is one year. If this were a suit to recover ‘a fine, penalty or forfeiture,’ it needs no argument to show the docketing of the suit would constitute the commencement of the action. This would necessarily be so, because in such proceedings there is neither presentment nor indictment, but the proceeding to recover any fine, penalty or forfeiture would be an action of debt. In analogy to the rule adopted in civil cases, it would seem to be clear that the commencement of such a suit must be the time when it is docketed whether the summons be issued or not. Bank v. Lyles, 10 G. & J. 326; Logan v. State, 39 Md. 177. We see neither objection to, nor difficulty in applying the same rule to both classes of proceedings mentioned in sec. 10, namely, that the first act which clearly indicates an intention to proceed, if it be made public and a matter of record in the proper Court, shall be held to be the commencement of the prosecution or of the suit as the case may be. In case of a prosecution this act would be the filing of the presentment by the grand jury, on information by the State’s officer or the docketing of a suit to recover a fine, penalty or forfeiture.” Id. at 174-75. (Emphasis in original.)

In the course of its opinion in Kiefer the Court pointed out that “it is not unusual in this State to try the accused on a presentment, without proceeding to indictment, especially in misdemeanors of the same class as that with which the defendant [wa]s [t]here charged.” It is no less true that many cases are tried on warrants or charging documents. Most criminal cases in the District Court are so tried. Before the creation of that court, appeals from its predecessors, the trial magistrates in many counties, were tried de novo in the circuit courts. Those appeals were tried on such warrants.

Implicit in the holdings of this Court in Hahn and Neff is the proposition that one looks at the date of issuance of a warrant rather than the date of a subsequent grand jury indictment to determine whether the statute of limitations has been tolled. In Hahn the warrant apparently was issued by a justice of the peace on June 30, 1943. The indictment was filed on July 2,1946. The charge was bastardy. The child was born October 8,1942. The statute of limitations was two years. Our predecessors held that the statute could not be tolled by the mere filing in the proceeding in the Criminal Court of Baltimore of a warrant issued by a justice of the peace. Chief Judge Marbury stated for the Court:

“They are still the records of the magistrate, and they still have to be proved in the same way as are other proceedings taken before a Justice of the Peace who is not a court of record. Fahey v. Mottu, 67 Md. 250, 10 A. 68; County Com’rs for Charles County v. Wilmer, 131 Md. 175, 101 A. 686. They can be proved by the Justice himself or by any one familiar with his signature. When so proved, they are admissible in evidence to prove the date on which the warrant was issued. Other means also might be adopted to prove this date, but as no question as to such proof is before us, we shall refrain from saying more than that the papers themselves are not admissible in evidence to establish any fact contained within them, including a date, without proof of their validity.” Id. at 171-72.

The plain implication of that decision is that the statute of limitations would have been tolled in that case had there been proper proof of the issuance of the warrant.³

It is stated in 21 Am. Jur. 2d Criminal Law § 161 (1965):

“The statute of limitations runs from the time the offense is committed until the prosecution is commenced, unless some intervening act occurs to interrupt it. If the finding of an indictment or the filing of an information is the first step in a criminal case, the prosecution is commenced by the finding and return of the indictment or the filing of the information, and the running of the statute is thereby stopped. But when, as is usually the case, there are preliminary proceedings, the prosecution is commenced and the statute is tolled at the time a complaint is laid before a magistrate and a warrant of arrest is issued . . . .” Id. at 228.

Similar statements relative to the issuance of a warrant as the beginning of a criminal proceeding are found in 22 C.J.S. Criminal Law § 234 at 607-08 (1961), and 1 Wharton, op. dt. § 184 at 427. Cases supporting this proposition include Clayton v. State, 122 Ala. 91, 26 So. 118 (1899); State v. Gardner, 112 Conn. 121, 125, 151 A. 349 (1930); Rosengarten v. State, 171 So. 2d 591, 593-94 (Dist. Ct. of App., 2d Dist. Fla. 1965) and cases there cited; State v. Simpson, 166 Ind. 211, 215, 76 N. E. 544 (1906); State v. Hemminger, 210 Kan. 587, 591, 502 P. 2d 791 (1972) and cases there cited; People v. Clement, 72 Mich. 116, 117-18, 40 N. W. 190 (1888); City of Cleveland v. Strom, 67 N.E.2d 353, 358 (Mun. Ct. of Cleveland, Ohio 1946); Jarrett v. State, 49 Okla. Crim. 162, 168, 292 P. 888 (1930); and State v. Erving, 19 Wash. 435, 436-37, 53 P. 717 (1898). The statute of limitations in effect in Iowa at the time of the decision in State v. Disbrow, 130 Iowa 19, 106 N. W. 263 (1906), was one requiring the bringing of an indictment “within three years after the commission of the offense and not afterwards.” However, the court there referred to the decisions of other states requiring that prosecution begin within the stated limit. It said:

“The beginning of a prosecution and a finding of an indictment are not equivalent expressions. A prosecution is begun when an information is filed before a magistrate and a warrant issued for the defendant’s immediate arrest. An indictment is found when it is presented by the grand jury in due form in open court and filed with the clerk. This distinction has been widely, though perhaps not universally, recognized.” (Citing cases.) Id. at 28.

See also 7A Words and Phrases 431 (1952) relative to issuance of a warrant as the beginning of prosecution.

If the State had brought McMorris to trial on this warrant in the District Court, no question relative to limitations properly could have been raised. It elected to obtain an indictment which included charges which could not be tried in the District Court, being beyond its jurisdiction. We do not interpret, as does McMorris, the fact that the State took all charges before the grand jury as such an abandonment of the earlier proceedings in the District Court as to cause the period of limitations to be judged from the date of the indictment. Such a holding would be contrary to the reasoning of our predecessors in Hahn, Kiefer, and Neff. The proceeding before the grand jury was but a continuation of the proceeding in the District Court. It was in the interest of the orderly administration of justice that all of the charges growing out of the incidents of January 23, 1973, were consolidated into one indictment so that they might be tried together. Obviously, trial of the conspiracy charge in the District Court and the distribution charge in the circuit court would have involved two appearances for counsel on both sides as well as for the witnesses. McMorris might well have regarded himself as being unduly harassed by the State by such a procedure.

We hold that the prosecution was “commenced” or “instituted” upon the issuance of the arrest warrant in the District Court. Since this took place less than one year from the date of the offense, it follows that the prosecution is not barred by the statute of limitations.

A reading of the arrest warrant and the second count of the indictment shows the charge set forth in the arrest warrant to be one within the second count of the indictment.⁴ The evidence adduced under that indictment was evidence within the purview of the arrest warrant. Therefore, we see no inconsistency between the two which would warrant invocation of the statute of limitations so as to prevent the prosecution. Turner v. State, 242 Md. 408, 219 A. 2d 39 (1966), relied upon by McMorris, is factually inapposite and does not compel a conclusion contrary to that here expressed.

Judgment affirmed; appellant to pay the costs.

1 . As pointed out by Judge Menehine for the Court of Special Appeals, the Revisor’s Note to § 5-106 states:

“Subsections (a) and (b) are new language derived from Article 57, § 11. This section applies to all misdemeanors, including common-law misdemeanors but excluding misdemeanors made punishable by imprisonment in the penitentiary by statute.”

2 . Likewise, we do not pass upon the question of whether the issue of limitations was properly raised by McMorris, the State having filed no cross-petition for certiorari. Walston v. Sun Cab Co., 267 Md. 559, 569, 298 A. 2d 391 (1973). The State contended in the Court of Special Appeals that the question had not been raised below. We note in passing, however, that in Ruble v. State, 177 Md. 600, 603, 11 A. 2d 455 (1940), Judge Sloan pointed out for this Court, “If limitations have run before presentment and indictment, it raises a question of law that ought to be decided before a case goes to trial on the merits, and a motion to quash affords a practical method of procedure to ascertain the fact and apply the law.” Maryland Rule 725 a, which became effective on January 1, 1957, provides that “motions to quash are abolished, and defenses and objections raised before trial which heretofore could have been raised by [such motions] shall be raised by the motion to dismiss or to grant appropriate relief.” Rule 725 b provides in pertinent part:

“Defenses and objections based on defects in the institution of the prosecution or in the indictment, other than that it fails to show jurisdiction in the court or to charge an offense, must be raised by motion before trial. Such motion shall include all such defenses and objections then available to the accused. Failure to present any such defense or objection as herein provided shall constitute a waiver thereof . . . .”

3 . Hahn, Kiefer, and Neff were all decided before the adoption of Rule 702 in which “indictment” is defined as including “a grand jury indictment, a criminal information and a charging document as defined in Maryland District Rule 702 (Definitions).” The latter rule defines a charging document as including an arrest warrant. Therefore, those cases should be read in that light.

4 . If McMorris was uncertain as to what facts the State was proceeding upon under this count of the indictment, he could have demanded particulars under Rule 715 a. The purpose of a bill of particulars is to guard against the taking of an accused by surprise by limiting the scope of the proof. Veney v. State, 251 Md. 159, 163, 246 A. 2d 608 (1968), cert. denied, 394 U. S. 948 (1969), and Hadder v. State, 238 Md. 341, 351, 209 A. 2d 70 (1965). This he did not do, nor did he in any way challenge the indictment in the trial court.

We do not mean to say by referring to a demand for particulars that particulars could make an invalid count valid. We mention particulars simply to make plain that McMorris did have available to him a means of ascertaining the exact factual situation upon which he was charged, a means which he did not use.

The dissenting opinion has referred to Chief Judge Brune’s statement in Putnam v. State, 234 Md. 537, 200 A. 2d 59 (1964), relative to review on appeal of a challenge to the sufficiency of a criminal information where the point had not been raised in the trial court. The exact statement is:

“In the trial court the appellant (then represented by counsel other than his counsel on appeal) made no objection at all to the sufficiency or to the form of the information. The preliminary question at once arises whether, in these circumstances, it may be raised on appeal. We shall assume, without deciding, that it is open here.¹

1 . The appellant’s claim that it is reviewable rests upon the provision of Maryland Rule 725 b that a question of lack of jurisdiction or of failure of the indictment (which under Rule 702 includes a criminal information) to charge an offense ‘shall be noticed by the court at any time during the proceeding.’ He overlooks the fact that under Rule 5 i the ‘Court’ is so defined as ordinarily not to include the Court of Appeals. Certainly this Court is not expressly included as a court to which Rule 725 b is applicable, and the appellant offers no argument to show that it is included as a result of necessary implication. Neither does the appellant discuss whether the failure to charge any offense falls within the provision of Rule 885 that a question as to the jurisdiction of the trial court may be raised and decided in this court, though not raised and decided below. This would seem a sounder basis for review since it is at least open to question whether a court exercising criminal jurisdiction has power to make a finding of guilt or to impose sentence under an indictment which charges no offense, but we do not decide the matter.” Id. at 540-41.

It will be noted that the Court did not decide whether the matter was open for review on appeal. There was no intermediate appellate court at that time. An appeal came directly to this Court.

Our review now is only by way of the writ of certiorari. In Walston v. Sun Cab Co., supra, 267 Md. at 567, Judge Barnes said for the Court that it “appears that the General Assembly intended that the certiorari procedure was to provide for a discretionary appeal.” He further stated:

“It should also be kept in mind that the statute contemplated that the desirability and public interest involved in granting certiorari are shown to us by petition and the matters presented to us by petition should logically be those considered by us unless we limit those matters for consideration in our order granting certiorari. In sum, except in most extraordinary circumstances, we will consider on an appeal resulting from a grant of a writ of certiorari only those questions raised in the petition and matters relevant to those questions, in the absence of a cross-petition raising additional questions, unless, of course, we have limited in our order granting certiorari the issues to be considered on that appeal.” Id. at 569.

The sufficiency of the indictment here, as pointed out by Judge O’Donnell in his dissent, was raised in neither the trial court nor in the Court of Special Appeals. Moreover, the petition to us for the writ of certiorari, prepared by an assigned public defender, stated:

“The questions presented for review are as follows:

(a) Does the issuance of an arrest warrant by the District Court of Maryland toll the statute of limitations?

(b) Is the filing of an indictment necessary to suspend the running of the statute of limitations in a criminal matter?

(c) Is the decision of the lower Court contrary to the law of this State?”

As previously stated, our grant of the writ of certiorari here was “limited solely to the question whether the trial court erred in rejecting [McMorris’] motion for judgment of acquittal in that the prosecution for conspiracy was barred by the statute of limitations . . . .” (Emphasis added.) Under the circumstances we do not regard it as in the interest of sound judicial administration to address ourselves to the sufficiency of the indictment.