Duncan v. State

• Decision Date: 10 April 1978
• Docket Number: No. 116,116
• Citation: 282 Md. 385,384 A.2d 456
• Parties: James Edward DUNCAN v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 385

282 Md. 385

384 A.2d 456

James Edward DUNCAN v. STATE of Maryland.

No. 116.

Court of Appeals of Maryland.

April 10, 1978.

Robert Paul Mann, Towson, for appellant.

Deborah K. Handel, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen., Clarence W. Sharp, and Kathleen M. Sweeney, Asst. Attys. Gen., Baltimore, on brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, LEVINE, ELDRIDGE, ORTH and COLE, JJ.

ORTH, Judge.

Upon our review on writ of certiorari, we reverse the judgment of the Court of Special Appeals which affirmed the judgment of the Circuit Court for Baltimore County entered upon the conviction at a bench trial of James Edward Duncan, a police officer, for the crime of misconduct in office. Duncan v. State, 37 Md.App. 330, 377 A.2d 567 (1977). We reverse the judgment of the intermediate court because the prosecution of the offense of which Duncan was found guilty was barred by limitations.

I

Statutes of limitations in criminal cases create "a bar to the prosecution, and the time within which an offense is committed becomes a jurisdictional fact. The state, therefore, has the burden of proving affirmatively the commission of the offense charged within the period limited by statute for its prosecution," and "(i)f the prosecution relies upon an exception to remove the bar of the statute of limitations, the burden of proof is on the prosecution to show the applicability of the exception." 1 Wharton's Criminal Evidence § 21 (13th ed. 1972). Furthermore, criminal limitations statutes are to be liberally interpreted in favor of repose. Toussie v. United States, 397 U.S. 112, 115, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970); United States v. Habig, 390 U.S. 222, 227, 88 S.Ct. 926, 19 L.Ed.2d 1055 (1968); United States v. Scharton, 285 U.S. 518, 522, 52 S.Ct. 416, 76 L.Ed. 917 (1932). The general rule with regard to whether an offense was committed within the period limited by the statute for its prosecution is simply stated: "Statutes of limitation normally begin to run when the crime is complete." Pendergast v. United States, 317 U.S. 412, 418, 63 S.Ct. 268, 271, 87 L.Ed. 368 (1943); United States v. Irvine, 98 U.S. 450, 452, 25 L.Ed. 193 (1878).

II

In Maryland, misconduct in office is a common law misdemeanor. ¹ It is corrupt behavior by a public officer in the exercise of the duties of his office or while acting under color of his office. Perkins on Criminal Law 485 (2d ed. 1969). See Hitzelberger v. State, 174 Md. 152, 197 A. 605 (1938). The corrupt behavior may be (1) the doing of an act which is wrongful in itself malfeasance, or, (2) the doing of an act otherwise lawful in a wrongful manner misfeasance; or, (3) the omitting to do an act which is required by the duties of the office nonfeasance. State v. Carter, 200 Md. 255, 262-267, 89 A.2d 586 (1952); Chester v. State, 32 Md.App. 593, 601-610, 363 A.2d 605, cert. denied, 278 Md. 718 (1976); Perkins on Criminal Law 482-492 (2d ed. 1969). ²

There being no statute in this State prescribing punishment for committing the offense, an offender is subject to the common law punishment imprisonment or fine to which may be added removal from office and disqualification to hold office. 4 W. Blackstone, Commentaries * 141. Therefore, prosecution for the crime must be instituted within one year after the offense was committed. Maryland Code (1974) Courts and Judicial Proceedings Article § 5-106(a). ³

As we have indicated, "(g)enerally speaking, a statute of limitations begins to run as soon as the offense is completed, and ordinarily there is no difficulty in fixing this point of time, because nearly every crime consists in a definite act or a definite result of some act. However, there are crimes which are continuing in character. As to these it is held that the statute does not begin to run until the last act is done which viewed by itself is a crime." 1 Wharton's Criminal Law and Procedure § 181 (1957). In Ellingham v. State, 163 Md. 278, 280, 162 A. 709, 710 (1932), in discussing the nature of a continuing offense, we adopted a definition taken from State v. Jones, 201 N.C. 424, 426, 160 S.E. 468 (1931):

" 'Wharton defines a continuing offense as a transaction or a series of acts set on foot by a single impulse, and operated by an unintermittent force, no matter now long a time it may occupy. (Wharton's Criminal Pleading and Practice § 474 (8th ed. 1880)). It is an offense which continues day by day. * * * The prosecution of an offense of this nature is a bar to a subsequent prosecution for the same offense charged to have been committed at any time before the institution of the first prosecution, but it is not a bar to a subsequent prosecution for continuing the offense thereafter, as this is a new violation of the law.' "

See State v. James, 203 Md. 113, 119-120, 100 A.2d 12 (1953). 1 Wharton's Criminal Law and Procedure § 181 (1957) puts it this way: "An offense is deemed to be a continuing offense within the statute of limitations when there is a continuing course of conduct as distinguished from the continuance of the result or effect of the original crime." When mere possession of a prohibited article is a crime, the offense is a continuing one because the crime is committed each day the article remains in possession, as there is a continuing course of conduct. See Marron v. United States, 8 F.2d 251, 254 (9th Cir. 1925), aff'd, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927).

III

The crime of which Duncan was convicted was charged in a true bill returned by the Grand Jurors for Baltimore County and filed in the Criminal Court for Baltimore County on 13 May 1976. ⁴ It presented that Duncan:

"on or before the 12th day of March in the year of our Lord nineteen hundred and seventy-six at Baltimore County, aforesaid being then and there a public officer to wit: a police officer for Baltimore County, State of Maryland, unlawfully, knowingly and corruptly did, under color of his office aforesaid, endeavor to obstruct, impede and pervert, the due administration of public justice and did obstruct, impede and pervert the due administration of public justice by retaining possession of goods to wit: with knowledge that said goods were obtained unlawfully by Michael Ronald Mally, said action by JAMES EDWARD DUNCAN being in wilful disregard and violation of the duties of said JAMES EDWARD DUNCAN, as a police officer for Baltimore County, State of Maryland, thereby constituting a perversion of the trust reposed in said JAMES EDWARD DUNCAN, as a police officer for Baltimore County, State of Maryland; against the peace, government and dignity of the State. (Misconduct in Office-Common-Law)" Duncan claims that if, in fact, the offense was committed by him, it was perpetrated at a time antedating the one year statutory limitations period. The State counters by urging that the crime was a continuing one, and as such, was still being committed within one year before the date of the presentment.

Ordinarily, a continuing offense is marked by a continuing duty in the defendant to do an act which he fails to do. The offense continues as long as the duty persists, and there is a failure to perform that duty. For example, a failure to register in compliance with the Alien Registration Act is a continuing offense, United States v. Franklin, 188 F.2d 182, 187 (7th Cir. 1951), as is the failure to keep records as required by maximum price regulations, United States v. Belfast Fabrics Corporation, 65 F.Supp. 567, 567-568 (S.D.N.Y.1946), failure to register for the draft, Fogel v. United States, 162 F.2d 54, 55 (5th Cir.), cert. denied, 332 U.S. 791, 68 S.Ct. 99, 92 L.Ed. 373 (1947), rev'd per curiam on other grounds, 335 U.S. 865, 69 S.Ct. 136, 93 L.Ed. 411 (1948), and nonsupport, Richardson v. State, 30 Del. (7 Boyce) 534, 537, 109 A. 124 (1920); Towns v. State, 24 Ga.App. 265, 100 S.E. 575 (1919).

When a public officer is the person who fails to perform the duty, he has committed the crime of misconduct in office by the corrupt act of nonfeasance. Thus, when the act of misconduct is the permitting of unlawful bookmaking activities to operate it is a continuing offense. State v. Hozer, 19 N.J. 301, 116 A.2d 193 (1955) and State v. McFeeley, 136 N.J.L. 102, 54 A.2d 797 (1947). ⁵ It is understandable, therefore, that the State would have the misconduct in office ascribed to Duncan to be by an act of nonfeasance so as to be a continuing offense. It asserts: "(Duncan) was under a continuous obligation as a police officer to, at the very least, report an offense of which he had knowledge as well as to return goods which he possessed, knowing them to have been unlawfully obtained. (Duncan's) violation of his duties cannot be isolated to any one point in time because the violations, like the duties, were continuous." For those reasons, the State submitted that "the misconduct in the case at bar was still in progress at the time of presentment." The State suggests, and we agree, "that the guideline in this case . . . is the nature of the crime involved." We simply cannot read the indictment as charging that Duncan "failed to lodge a complaint against Mally," or, in other words, committed an act of nonfeasance by failing to institute prosecution of Mally.

Former Maryland Rule 712 a, applicable in this case, ⁶ provided that "(a)n indictment shall contain a plain, concise and definite statement of the essential facts constituting the specific offense with which the defendant is charged." See Goeller v. State, 119 Md. 61, 63, 85 A. 954 (1912). The offense is determined by the facts stated in the indictment. Carter, 200 Md. at 262, 89 A.2d 586 (quoting Cargile v. State, 67 Ga.App. 610, 611, 21 S.E.2d 326 (1942)). It is perfectly clear that by the facts stated in the indictment here, the corrupt act constituting the crime of misconduct in office was the retaining of goods by Duncan with knowledge that they were obtained unlawfully by Mally. Plainly,...