McMorris v. State

• Decision Date: 25 February 1976
• Docket Number: No. 77,77
• Citation: 355 A.2d 438,277 Md. 62
• Parties: Lee Andrew McMORRIS v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 62

277 Md. 62

355 A.2d 438

Lee Andrew McMORRIS v.STATE of Maryland.

No. 77.

Court of Appeals of Maryland.

Feb. 25, 1976.

Harriette Cohen and George E. Burns, Jr., Asst. Public Defenders (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Gilbert H. Robinette, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

SMITH, Judge.

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23, 1973.The first count charged a conspiracy with Green and Smith to unlawfully distribute heroin.This count was withdrawn from the jury by the trial judge.The second count charged a conspiracy with the same persons 'to violate the controlled dangerous substance laws of the State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This section was repealed effective January 1, 1974, by Chapter 2, § 2 of the Acts of the First Special Session of 1973, so that on the date of the indictment the pertinent statute was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.'¹The 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 artument 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's 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);andNeff v. State, 57 Md. 385(1882).In Kieferthe 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 Kieferthe 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 prosecutionthis 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.90 Md. at 174-75, 44 A. at 1044.(Emphasis in original.)

In the course of its opinion in Kieferthe 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 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 countries, 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.188 Md. at 171-72, 52 A.2d at 115.

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.2dCriminal 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...