State v. Kiefer , 90 Md. 165 ( 1899 )

The defendant was indicted in the Criminal Court of Baltimore for a violation of the liquor law. The indictment charges that the act alleged to have constituted the violation of the law was committed on the 30th May, 1897, and the record shows that the indictment was not filed until the 11th June, 1898, that is to say, it was filed a few days after the expiration of one year from the commission of the alleged misdemeanor. It is conceded, however, that the presentment, if it be a valid presentment, was filed before the expiration of the period of limitation. The defendant demurred on the ground that the indictment shows on its face that the prosecution is barred by sec. 10, Art. 57 of the Code, which provides that "no prosecution * * shall be commenced for any * * * misdemeanor, except those punished by confinement in the penitentiary, unless within one year from the time of the offence committed." The Court below sustained this demurrer and the State has appealed. It does not appear, however, that a final judgment was entered by the Court below on the demurrer. But waiving this difficulty we will proceed to consider the question presented.

The contention of the defendant is that the filing of the indictment is the commencement of the prosecution, and that even if the filing of a formal presentment can be held to have that effect, no such presentment was filed in this case. The State, on the other hand, contends that the presentment is the beginning of the prosecution, and that the presentment as set forth in the record is sufficient.

In the first place, it seems very clear to us that the presentment — or what is called the presentment — in this case, falls far short of what is required by the established practice. It is as follows:

"SPECIAL,

State's Attorney's Office. STATE OF MARYLAND, | | Baltimore, May 26, 1898. vs. | Charge: Violation of liquor LOUIS KIEFER. | law.

HIRAM G. DUDLEY, ESQ.,

Clerk of the Criminal Court of Baltimore. Please summon the witnesses hereinafter named to testify for the State before the grand jury.

HENRY DUFFY, The State's Attorney, c., c.

Then follows a list of witnesses for the State. Upon this order to the clerk — or it is called "special case" — is endorsed the following: "Presented May 27th, 1898.

WALDO NEWCOMER, Foreman."

It is sufficient to say that every presentment should clearly inform the accused of the charge preferred against him, and that it should be sufficiently explicit and definite to enable the State's officer to prepare the indictment. But the presentment in this case does neither. The only charge set forth is "violation of the liquor law" — whether by a sale on Sunday in any of the various ways that the Sunday liquor law may be violated, or by a sale to a minor on any day, does not appear. It is clear that the indictment on which the defendant was tried could not have been prepared from the information afforded by the presentment. By the indictment he is charged with having unlawfully sold intoxicating liquors to certain persons who were not his bona fide guests, such liquors to be drunk in the room or with the meal, c. — he being a hotel keeper, c. But he might with the same propriety have been indicted for a sale to a minor. Under those circumstances this indictment cannot be said to be the formal and technical statement of the charge contained in the presentment, for, as we have said, the presentment is in such general terms that it is impossible to determine from it what the accusation is. It would necessarily follow, therefore, if the presentment is not sufficient, that the prosecution must fail, for it is conceded that the indictment was not filed until after the time limited by sec. 10, Art. 57.

But inasmuch as the main question in the case (indeed the only one that was argued) is 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, § 10), we will consider it briefly. It may be remarked 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 is here charged. If such a course has not been usually conceded to be the right of the accused, it is at least uniformly in the circuits granted as a favor, and accorded to him as a convenience, and adopted as a means of expediting business. It may also be observed that both the Constitution of the United States and of our own State use the terms indictment, presentment and charge interchangeably. Thus the accused shall have the "right to be informed of the accusation against him and to have a copy of the indictment or charge in due time to prepare his defence." Bill of Rights, Art.21. "No person shall be held to answer for a capital or otherwise infamous crime, unless on presentment or indictment of a grand jury." 5th Amendment, United States Constitution. It is all the more necessary, therefore, that the presentment or charge should be full and definite, so that if the accused should wish to avail himself of a speedy trial without waiting for the preparation and filing of a formal indictment he may safely do so. In addition to these illustrations which tend to show that the presentment has been considered as at least thefirst step in the prosecution, we may refer to the 8th sec. ofArt. 4 of our Constitution, providing that in all cases ofpresentments or indictments the Court shall in capital cases, when the required affidavit has been made, order the record in such presentment or indictment to be transmitted to some other Court having jurisdiction in such case for trial. Of course this means and must mean that when the case is to be tried, as we have said it often is tried on the presentment, and there is a suggestion for removal, the record of proceedings in suchpresentment are transmitted for trial in some other Court, and when the case is to be tried on an indictment and there is a suggestion for removal, then the record in such indictment is to be transmitted. But independent of these general considerations, we 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.Southerland 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.

It was contended, however, that this question has been decided by this Court in the case of World v. State, 50 Md. 55. But it does not appear to have arisen there. It is true it was there said that the offence for which the accused was tried, being a misdemeanor, "it must be prosecuted within one year from the time of its commission," and "it is necessary in order to justify a conviction that the proof should establish the fact that the accused was a common thief within one year before the prosecution was begun, and therefore evidence of acts of larceny committed more than a year before the indictment was found would not be admissible." There is nothing in the case just cited, however, to show that any question was raised as to whether the filing of the presentment or of the indictment is to be considered the commencement of the prosecution. And it may well be that under the circumstances of that case it was immaterial which of them should be given that effect. But, however this may be, it is sufficient to say that the Court's attention was not directed to the question now before us.

Decisions in other States were relied on by the defendant to sustain his construction of our statute, but it will be found that most of the statutes differ materially from ours. In 1Wharton's Crim. Law, 8 ed., sec. 449a, it is said that "the procedure which must be instituted in order to serve the statute is in the federal statutes ``indictment or information,' and in the statutes of most of the States ``indictment.'" An examination of the statutes referred to will prove this statement to be correct. In Pennsylvania there is an express provision that "all indictments for any crime or misdemeanor * * * shall be brought * * within" the statutory period. 2Brightly's Pur. Digest, p. 1069, c., and also in IllinoisCrim. Code, sec. 316. Under the Pennsylvania and other similar State statutes (and as Mr. Wharton says, most of them have a substantially similar provision), even if it be conceded that the presentment is the commencement of the prosecution, it would necessarily follow that no matter when the prosecution is begun,the indictment must be filed within the statutory period. But there is no such controlling language in our statute (sec. 10, Art. 57). "No prosecution," says our Code, "shall be commenced unless within one year," c., and therefore we are at liberty to hold, as we do, that the reasonable and proper construction is that the presentment begins the prosecution and stops the running of the statute.

Without prolonging this opinion we conclude by saying that whatever may be the proper construction of statutes elsewhere upon this subject, our view is based upon the construction of our own statute, our Constitution, and the practice which prevails here in regard to trials on presentments.

We hold, therefore, first, that the presentment filed in this case and transcribed in the former part of this opinion is not valid; and secondly, that if it had been valid, having been filed within a year from the time the offence was committed, it would have been a commencement of the prosecution within the terms of sec. 10, Art 57 of the Code, and would, therefore, have stopped the running of the statute.

It follows that the pro forma ruling by which the demurrer was sustained must be affirmed, not, however, because the indictment, as contended, is the commencement of the prosecution and shows on its face that it is barred by limitations, but because the presentment, which is the first step in the prosecution is, in this case, invalid.

Waiving the question as to whether a motion to quash would not have been the more regular course to raise the question we have considered, the ruling of the Court below will be affirmed, and inasmuch as it appears by the record that the statute of limitations is a flat bar to a further prosecution, it would be useless to remand.

Ruling affirmed.

(Decided December 6th, 1899).