State v. Mars, 542

• Decision Date: 07 June 1978
• Docket Number: No. 542,542
• Citation: 39 Md.App. 436,386 A.2d 1234
• Parties: STATE of Maryland v. William MARS.
• Court: Court of Special Appeals of Maryland

Page 436

39 Md.App. 436

386 A.2d 1234

STATE of Maryland v. William MARS.

No. 542.

Court of Special Appeals of Maryland.

June 7, 1978.

Bruce C. Spizler, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Donaldson C. Cole, Jr., State's Atty. for Cecil County and Paul S. Podolak, Asst. State's Atty. for Cecil County on the brief, for appellant.

William B. Calvert, Elkton, with whom were O. Robert Lidums and Rollins & Calvert, Elkton, on the brief, for appellee.

Argued before GILBERT, C. J., and MOYLAN and LISS, JJ.

MOYLAN, Judge.

This appeal by the State involves exclusively the application of the Maryland Statute of Limitations in non-penitentiary misdemeanor cases. The Annotated Code of Maryland, Courts and Judicial Proceedings Article, § 5-106(a), provides:

"Except as provided by this section, 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."

The appellee in this case, William Mars, was initially indicted by a Cecil County grand jury of 1) false pretenses, 2) conspiracy to commit false pretenses, 3) conspiracy with a public officer to commit malfeasance in office and 4) conspiracy with a public officer to commit misfeasance in office. The latter three of these charges represent non-penitentiary misdemeanors so as to require that a prosecution for them must be "instituted within one year after the offense was committed."

The evidence established that the offenses in this case took place on September 2, 1975. Warrants of arrest were issued on August 20, 1976, well within the period of limitations. The Cecil County grand jury heard evidence and returned an indictment on September 16, 1976, two weeks beyond the one-year period of limitations. Upon that basis, the appellee moved pretrial to dismiss the indictment. A hearing was held in the Circuit Court for Cecil County and the Motion to Dismiss was granted. ¹ The State has taken a timely appeal.

As to what action constitutes the commencement of prosecution so as to stop the running of the Statute of Limitations, the Maryland law is clear that the issuance of an arrest warrant constitutes such action. This Court so held in McMorris v. State, 26 Md.App. 660, 338 A.2d 912. In affirming that action by this Court, the Court of Appeals, speaking through Judge Smith, undertook a scholarly analysis of the earlier law in this State and of the case law around the country. McMorris v. State, 277 Md. 62, 355 A.2d 438. Judge Smith pointed out, at 277 Md. 67-68, 355 A.2d 441-42:

"Implicit in the holdings of this Court in Hahn and Neff (v. State, 57 Md. 385) 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. . . .

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.

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."

The appellee recognizes this undisputed principle of law in the abstract but he attempts to engraft upon it a qualification that an arrest warrant will not stop the running of the Statute of Limitations unless there is "a good faith attempt to serve the warrant." Except by the most strained of reasoning, he offers us no authority for the legal principle he seeks to establish. He points to the fact that in the McMorris case, the recitation of facts includes a mention that efforts were made, albeit unsuccessfully, to serve the warrant immediately in that case. The clear holding by this Court, at 26 Md.App. 670, 338 A.2d 917, did not embrace the peripheral description of the facts in that case as a sine qua non for the holding. It rather stated flatly:

"We hold that issuance of the arrest warrant by the District Court tolled the statute of limitations. The prosecution of McMorris was timely."

The Court of Appeals, in its McMorris decision, did not even bother to include within its statement of facts the mention of the effort at immediate service relied upon so critically by the appellee here. The holding of the Court of Appeals was not in any way qualified:

"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." 277 Md. at 70, 355 A.2d at 443.

The earlier Maryland decision of Hahn v. State, 188 Md. 166, 52 A.2d 113, offers no support for the appellee's position. In that case, the charge was bastardy and the statute of limitations was two years. The child was born on October 8, 1942, which event commenced the running of the statute. A warrant of arrest was apparently issued by a justice of the peace on June 30, 1943, well...