Irvin v. State

• Decision Date: 19 November 1974
• Docket Number: No. 140,140
• Citation: 23 Md.App. 457,328 A.2d 329
• Parties: Louis William IRVIN v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 457

23 Md.App. 457

328 A.2d 329

Louis William IRVIN v. STATE of Maryland.

No. 140.

Court of Special Appeals of Maryland.

Nov. 19, 1974.

William F. Mosner, Towson, for appellant.

Gary Melick, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen. and H. Edgar Lentz, Asst. Atty. Gen., on the brief, for appellee.

Argued before THOMPSON, POWERS and GILBERT, JJ.

GILBERT, Judge.

This appeal has arisen as a result of a directive dated November 13, 1972 from Governor Marvin Mandel ¹ to Attorney General Francis B. Burch in which the Attorney General was directed to conduct an investigation into 'the allegations of corruption of public officials in connection with the arrest, pending prosecution and escape of one, John Edward Jones, from the Baltimore County jail, and to pursue any evidence of criminal violations or administrative irregularities resulting from your investigation.'

During the course of the Attorney General's inquiry the then Deputy State's Attorney for Baltimore County, Stuart L. Hirsch, furnished the Attorney General's representatives and the Maryland State Police with '150 hours of tapes' concerning the operation of the Baltimore County State's Attorney's office. As a result of information supplied by Hirsch, an investigation focused upon what became known as 'the Harrington case'. That case involved Kneass Harrington's efforts to have a nol prossed indictment that charged violation of the gambling laws expunged from government records. In order to accomplish his desire, Harrington contacted the appellant, Louis William Irvin, the chief investigator for the State's Attorney's office of Baltimore County. Irvin in turn talked to Hirsch, and, as a result of that conversation, Irvin delivered to Harrington a 'Petition to Expunge', which petition was drawn by Hirsch, but signed by another member of the bar, Stephen Luskin Miles, at Hirsch's request. Irvin collected a 'fee' of $750.00 from Harrington, all or part of which was turned over to Hirsch. An order on the petition was signed as a routine matter by a judge of the Circuit Court for Baltimore County on July 13, 1972.

A Baltimore County police lieutenant, who was a friend of Harrington, noted that the records of the County police had not been expunged, and the lieutenant made a complaint to Hirsch. Hirsch then wrote a letter to the County police in which he enclosed an attested copy of the order of expungement. In compliance with the order the Baltimore County police and the Maryland State police removed all records pertaining to Harrington's arrest on the gambling violation. No expungement, however, was effected in the office of the Clerk of the Court of Baltimore County nor, apparently, in the office of the Federal Bureau of Investigation.

Irvin was indicted by the grand jury for Baltimore County in Indictment No. 46738 charging false pretense, bribery, extortion and misconduct in office. He was also indicted in Indictment No. 46739, a five count indictment charging obstruction of justice and misconduct in office, and in Indictment No. 46882 charging conspiracy to obstruct justice. Irvin moved to dismiss the indictments on the ground that they were procedurally defective. After a pretrial hearing Judge Robert E. Clapp, Jr. dismissed counts three and four of Indictment No. 46738, all counts of Indictment No. 46739 and Indictment No. 46882. The State nol prossed counts one and two of Indictment No. 46738.

On October 9, 1973 the State appealed the trial court's dismissal of Indictments Nos. 46739 and 46882. Thereafter, on October 11, 1973, while the appeal was pending, the State sought and obtained a new indictment against Irvin containing twelve counts. ² The case commenced on October 31 and terminated on November 6, 1973. Irvin was found guilty of false pretense and two counts of conspiracy. Following trial Irvin filed a 'Motion for a New Trial' in which, inter alia, he suggested that the trial court lacked jurisdiction because of the pending appeal. His motion was denied and he received concurrent eighteen month sentences. The State then dismissed its appeal dated October 9, 1973.

In this Court Irvin contends:

I. 'After the State entered an appeal from the dismissal of certain counts in the original indictment(s) and then reindicted appellant on the same charges it could not proceed to trial on the latter indictment while the appeal on the first was still pending.'

II. The evidence was insufficient to sustain a conviction of false pretense.

III. The evidence was insufficient to sustain a conviction of conspiracy.

IV. The trial judge erred in admitting statements of an alleged coconspirator into evidence.

I.

Md.Ann.Code, Cts. & Jud.Proc.Art., § 12-302(c) (1974) provides:

'In a criminal case, the state may appeal only from a final judgment granting a motion to dismiss or quashing or dismissing any indictment, information, presentment, or inquisition in a criminal case.' ³

Even in the absence of legislative authority the Court of Appeals has long held that the State could appeal a dismissal of an indictment. In State v. Buchanan, 5 Harr. & J. 317, 9 Am.Dec. 534 (1821), it is stated:

'. . . (T)here is no sufficient reason why the state should not be entitled to a writ of error in a criminal case. It is perhaps a right that should be seldom exercised, and never for the purpose of oppression, or without necessity; which can rarely, and it is supposed would never happen, and would not be tolerated by public feeling. But as the state has no interest in the punishment of an offender, except for the purpose of general justice connected with the public welfare, no such abuse is to be apprehended; . . .'

The Court, in State v. Wade, 55 Md. 39 (1880), addressed itself to the finality of a dismissal of an indictment. It said:

'. . . The record shows that the indictment was quashed by the court below upon the motion of the defendant. That was a final termination of the prosecution upon the particular indictment, and the defendant was necessarily discharged from all further proceedings thereon. Whether the State may proceed on another indictment would depend upon the action of a future grand jury.' (Emphasis supplied).

The Court also held in State v. Hodges, 55 Md. 127 (1880) that:

'. . . (T)he judgment in quashing an indictment is a final judgment. There can be no further proceedings upon the indictment, and although the prisoner may be held to bail to await the further action of the grand jury, yet so far as the pending indictment is concerned, he is entitled to his discharge.' (Emphasis supplied).

More recently, this Court in Raimondi v. State, 8 Md.App. 468, 261 A.2d 40 (1970), speaking through Chief Judge Murphy, opined at 475, 261 A.2d at 43:

'The Court of Appeals has held that the perfecting of an appeal brings the subject matter thereof within the exclusive jurisdiction of the appellate court and suspends the authority of the lower court over it during the pendency of the appeal; that the lower court lacks jurisdiction to take any further action in the case with respect to the subject matter of the appeal until the receipt of the mandate of the appellate court, after the appeal has been heard and decided.' (Emphasis supplied).

Appellant argues that the effect of Raimondi is that 'if an appeal is filed from what is considered to be a final order-such as an order dismissing indictments-the lower court does lose jurisdiction to proceed further until the appeal has been heard.'

As we read Raimondi in the light of Wade and Hodges, supra, when the State appeals the dismissal of an indictment, the trial court loses jurisdiction over that particular indictment. It does not, however, lose the jurisdiction to try the accused on a subsequent indictment even though the subsequent indictment arises from the same facts. When Chief Judge Murphy, in Raimondi, referred to the fact that the trial court lacked 'jurisdiction to take any further action in the case with respect to the subject matter of the appeal' (Emphasis supplied), he obviously was referring to the particular indictment upon which the appeal was pending. ⁴

Although the appellant has referred us to a number of cases arising in other jurisdictions ⁵, we do not find them persuasive because the law of Maryland, since Wade and Hodges, supra, is to the contrary ⁶. In Maryland the State may either appeal the dismissal of an indictment or seek a new indictment or both so long as the State's action is not deemed to be appressive and thus a possible violation of due process of law. In sum, the State must act in good faith.

We hold that the Circuit Court for Baltimore County was not divested of jurisdiction to try the appellant on a new indictment notwithstanding the State's appeal from a dismissal of prior indictments arising out of the same facts.

II.

We turn now to appellant's second contention. Md.Ann.Code art. 27, § 140 provides in pertinent part:

'Any person who shall by any false pretense obtain from any other person any chattel, money or valuable security, with intent to defraud any person of the same, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be punished by fine and imprisonment, or by confinement in the penitentiary for not less than two years nor more than ten years, as the court shall award; provided always, that if upon the trial of any person charged with such misdemeanor it shall be proved that he obtained the property in question in any such manner as to amount in law to larceny or robbery, he shall not by reason thereof be entitled to be acquitted of such misdemeanor; and no person tried upon such misdemeanor shall be afterwards liable for larceny or robbery upon the same facts; and provided also, that a mere promise for future payment, though not intended to be performed, shall not be sufficient to authorize a conviction under this section.'

This Court, in Polisher v. State, 11 Md.App....