McMorris v. State

STATE OF MARYLAND McMORRIS v. Term, 77, September 1975.] [No. February

Decided J., C. argued before cause Singley, Murphy, JJ. Eldridge O’Donnell, Levine, Smith, Digges, Bums, and George Jr., E. Harriette Cohen Assistant Murrell, Defenders, whom Alan H. Public Public brief, appellant. for Defender, on the with Robinette, Attorney General,

Gilbert H. Assistant Burch, Attorney General, whom were Francis B. brief, Attorney General, on Sharp,

Clarence W. Assistant appellee. for the Court. opinion of J., delivered the O’Donnell, Smith, page 72 dissenting opinion at

J., and filed dissents infra. by of We here affirm determination the Court shall App. 660, Special Appeals in McMorris prosecution appellant, of Lee A. 2d 912 (McMorris), by barred Andrew McMorris limitations. August 21,

On a warrant was issued out of the charg- County for Baltimore District Court ing “on . . conspire McMorris or about 1-23-73 . did with sell heroin to Det. Ken Walter Smith to Herman Green & apprehended 1974. .” McMorris was on June Redding . . . Jury County July 22, On the Grand Baltimore In each instance the acts indicted McMorris three counts. January The first alleged were to have occurred on conspiracy count with Green and Smith to unlawfully distribute heroin. This count was withdrawn by charged a jury judge. from the trial The second count conspiracy persons the same “to violate the controlled being Maryland, dangerous State of substance laws of the alleged . . .” The third 276-302 . count Sections Article guilty jury The returned distribution heroin. unlawful the third second third counts. Since verdicts on the felony, have been raised involved a no contentions applied statute of limitations relative to the prosecution it. under in effect on the date

The statute limitations relevant 57, 11, (1957, Repl. Vol.) Art. was Code § pertinent part: read then commenced for prosecution or shall be “No suit fine, forfeiture, any penalty or mis- demeanor, except con- punished those penitentiary, one unless within finement in the . . . .” year time of the offense committed from the 1, 1974, by repealed January effective This section was Special Chapter 2, the Acts of the First Session § pertinent the indictment that on the date of so (1974) (a) 5-106 Courts and Judicial statute was Code prosecution provides “a for a Proceedings It Article. punishable confinement in the not made misdemeanor year penitentiary shall be instituted within one statute Special offense was committed.” after the change Appeals “perceive[d] legislative no intent said meaning of limitations in the effect and statute holding agree. Accordingly, We under the recodification.” 128, 136-37, 125 744 v. 145 Md. A. Court Archer this in (1924), prosecution here would be barred unless the year the of or instituted within one from date commenced granted conspiracy. We the writ certiorari the end of the solely question the court erred the whether trial “limited judgment acquittal in rejecting for in motion [McMorris’] by the prosecution was barred that the . . limitations . .” statute of (1) arguments, that three

McMorris here advances “[t]he prosecution the arrest abandon its under State elected to prevent did the the warrant not and therefore warrant limitations,” (2) that offense running of the statute “[t]he not the offense for which charged in the warrant was arrest warrant could convicted and therefore the was [McMorris] offense,” (3) that the latter and the statute not toll was so defective that it of the indictment was two “[c]ount incapable tolling do the statute.” We invalid and therefore Appeals, Special by Judge the Court of pointed Menehine for 1. As out states: Note 5-106 the Revisor’s to § language from Article (b) derived (a) new are “Subsections misdemeanors, including applies to all 11. This section § excluding made misdemeanors but misdemeanors common-law penitentiary by punishable imprisonment the statute.” 65 by the having been raised argument as regard last not grant.2 encompassed in the thus petition for certiorari Wharton, are said 1 Criminal of limitation Statutes 1957) fall into (Anderson, 184 at 426 to and Procedure Law categories. statute second The three not to the time of the category, which do refer “statutes information, filing finding of prosecutions commenced merely provide must be specified inquiry . here Therefore, . . time .” within prosecution “commenced” or must be whether The year” offense. one of the date “instituted within merely presented by McMorris are remaining questions two question. stating ways of the same basic different holdings today of our holding was forecast here Our A. 113 2d predecessors in Hahn v. (1899); (1947); A. Kiefer, 90 Md. State v. (1882). In said the Court State, 57 Md. 385 v. Kiefer

Neff question the case .. . whether that “the main [was] presentment, presentment, assuming it to be a valid or the indictment, prosecution within commencement is the applicable to meaning our statute of limitations 10). .. .” 57, sec. prosecutions (Art. for misdemeanors Likewise, upon question pass raised of whether issue we do having McMorris, properly no the State filed limitations Co., cross-petition v. 267 Md. Walston Sun Cab for certiorari. Special Appeals The State contended the Court of A. 2d however, passing, been raised below. We note had not 600, 603, 11 Judge pointed A. 2d 455 Sloan in out Ruble Court, presentment “If limitations have run before for this ought question of to be before a case it raises a law that decided practical goes merits, quash and motion to affords a to trial procedure apply the fact law.” method of to ascertain the a, January 1, 1957, provides that Rule 725 which became effective on abolished, objections quash defenses raised to are before “motions trial which heretofore could be have raised shall [such motions] been grant appropriate b to or relief.” Rule 725 raised provides the motion dismiss to part: pertinent objections in the institution of “Defenses and based defects indictment, prosecution or than it fails to the in the other that offense, jurisdiction must the court or to an be show all before trial. Such motion shall include such

raised motion objections then to Failure to defenses and present any available the accused. objection provided herein shall such defense as . . . .” constitute a waiver thereof quoted is portion (1957) Art. which we have of Code § In language of 10 as it then stood. exact Kiefer said: our upon proper think construction “[W]e presentment filing of should be that the statute prosecution. commencement of the considered the requires no rule of construction We know of ordinary plain meaning of words us to limit regulating proceedings. criminal used statutes contrary, language, is such On the rule yet strictly, it should be although be construed meaning. given plain its Stat. Sutherland Construction, Now is evident sec. 349. for prosecution within which a

period of limitation brought is as that be the same a misdemeanor must any fine, prescribed bringing of for for the a suit forfeiture, separate these two penalty or because — and in the same section proceedings are included year. one both them is period of limitation fine, penalty or for- ‘a were a to recover If this suit argument to show the docket- feiture,’ it no needs commence- ing would constitute of the suit necessarily so, be action. This would ment of the present- proceedings there neither such because proceeding to re- nor ment an any fine, penalty would be or forfeiture cover adopted analogy to the rule of debt. action be cases, it would seem to clear civil be the time such a suit must commencement of be issued whether the summons it is docketed when 326; Logan G. J. & Lyles, or not. Bank v. to, objection dif- nor Md. 177. We see neither classes of

ficulty applying rule to both same 10, namely, that the in sec. proceedings mentioned clearly intention indicates act which first of record public and a matter proceed, be made if it Court, held proper shall be in the prosecution or of suit commencement of prosecution this act a In case of be. the case grand by presentment filing be the would officer or by State’s jury, information on fine, or penalty docketing to recover of a suit original.) (Emphasis in 174-75. forfeiture.” Id. pointed out the Court opinion of its

In the course Kiefer on a try accused in this State not unusual that “it is indictment, especially proceeding to presentment, without with which as that same class of the misdemeanors true that charged.” is no less It defendant [t]here [wa]s charging documents. many on warrants cases are tried so tried. Before Court are in the District criminal cases Most predecessors, the court, appeals from its of that the creation novo in the many counties, tried de magistrates in were trial such warrants. appeals were tried on Those circuit courts. holdings of this Court Hahn Implicit in the Neff of a date of issuance proposition one looks at the grand jury subsequent of a than the date

warrant rather of limitations whether the statute to determine apparently issued the warrant has been tolled. Hahn The indictment by justice peace on June of the bastardy. 2,1946. The child July was filed on 8,1942. limitations was two The statute of was born October could not be years. predecessors held that the statute Our filing proceeding in the Criminal mere tolled justice warrant issued of the of a of Baltimore Marbury Judge stated for the Court: peace. Chief magistrate, “They are still the records way proved in as are they to be the same still have proceedings taken before a Justice other Mottu, Fahey who is not a court of record. Peace 68; County 10 A. Com’rs Charles They Wilmer, 131 Md. 101 A. 686. County v. one proved by himself or be the Justice can they signature. proved, When so familiar with his prove the date in evidence to are admissible means also was issued. Other which the warrant prove date, no might but as adopted to this proof us, as to such is before we shall saying papers refrain from more than that themselves are not admissible evidence them, including establish fact contained within validity.” date, proof of at without their Id. 171-72. plain implication that decision is that the statute of there would have been tolled that case had

limitations proof of the warrant.3 proper been of the issuance (1965): 161 2d Criminal Law in 21 Am. Jur. It is stated § time runs from the “The statute of limitations prosecution is until the offense is committed intervening occurs to commenced, some act unless finding an indictment or interrupt If the it. step in a is the first filing information of an by the is commenced case, prosecution criminal filing or the the indictment finding return of and running of the statute information, case, usually the when, as is stopped. But thereby prosecution proceedings, the preliminary there are time a is tolled at the the statute is commenced warrant magistrate and a complaint is laid before . .” Id. . . at 228. arrest is issued as of a warrant the issuance relative to Similar statements 22 in C.J.S. proceeding are found a criminal beginning of op. dt. Wharton, 1 (1961), and 607-08 Law 234 Criminal § include proposition supporting this 427. Cases 184 at (1899); 91, 118 v. 26 So. State 122 Ala. Clayton v. (1930); Rosengarten 125, A. 349 121, 151 112 Conn. Gardner, (Dist. App., 2d Dist. 591, Ct. 593-94 So. 2d 171 v. 166 Ind. cited; Simpson, v. 1965) there State and cases Fla. 210 Kan. Hemminger, (1906); 544 State v. 211, 215, 76 N. E. adoption of Rule Hahn, Kiefer, were all decided before Neff grand jury including as “a “indictment” is defined 702 which charging as defined document and a a criminal information charging (Definitions).” defines a The latter rule 702 District Rule Therefore, including cases should be those arrest warrant. document read light. in that

69 591, (1972) cited; 587, 791 People 502 P. 2d and cases there v. 117-18, Clement, (1888); 40 N. 190 City Mich. W. Strom, (Mun. 67 N.E.2d Cleveland Ct. of v. Cleveland, 1946); Ohio v. Okla. Crim. Jarrett (1930); Erving, P. 19 Wash. State v. 436-37, 53 P. 717 The statute limitations effect Disbrow, in Iowa at the time of the decision State requiring Iowa 106 N. W. 263 was one bringing years of an indictment “within three after the However, commission the offense and not afterwards.” the court there referred to the decisions of other states requiring prosecution begin within the limit. stated It said: beginning prosecution finding

“The of a and a of an equivalent expressions. indictment are not A prosecution begun is when information is filed magistrate before a and a warrant issued for the defendant’s immediate arrest. An indictment presented by grand found when is jury in due open form in court filed with the clerk. This widely, though perhaps distinction has been not universally, recognized.” (Citing cases.) at 28. Id.

See 7A (1952) also Words and Phrases relative issuance of beginning prosecution. warrant as of

If the brought State had McMorris to trial on warrant this Court, in the District no relative to limitations properly could have been raised. It elected to obtain an charges indictment which included which could not be tried Court, beyond being the District jurisdiction. its We do interpret, McMorris, as does the fact that the State took charges grand all jury before the as such an abandonment proceedings the earlier in the District Court as to cause the period of judged limitations to be from the in- date of the holding dictment. Such a contrary would be reasoning predecessors of our Hahn, Kiefer, and The Neff. proceeding grand jury before the was but a continuation of proceeding in the District Court. It was the interest of orderly justice administration of charges that all January 23,

growing incidents were out they might that be tried into one indictment so consolidated charge Obviously, in the together. trial charge circuit the distribution in the District Court and appearances involved two for counsel court would have might well well as for the witnesses. McMorris both sides as unduly by being the State regarded himself as harassed have procedure. such a prosecution was “commenced” or We hold arrest warrant upon the issuance “instituted” year place than one from this took less District Court. Since offense, prosecution is not it follows that the the date of the of limitations. barred the statute and the second count of reading A of the arrest warrant set forth in the arrest the indictment shows be one within the second count warrant under that indictment.4 The evidence adduced proceeding to what facts the State was uncertain as 4. If McMorris could have demanded upon particulars he this under guard particulars purpose is to of a bill of 715a. under Rule surprise by scope limiting taking against an accused (1968), denied, Veney A. proof. 394 U. S. 948 (1965). the trial 2d cert. v. 341, 351, A. 2d 70 and Hadder way challenge do, the indictment did he in This he did not nor court. referring particulars say by demand to a mean to We do not particulars valid. We mention particulars an invalid count make could him a means simply plain did have available to McMorris to make charged, upon ascertaining which he situation the exact factual did not use. which he means Judge in dissenting opinion Brune’s statement referred to has Chief The to review on A. relative 2d Putnam sufficiency where the challenge of criminal information appeal point a to the of The exact statement is: in trial court. been raised had not by appellant (then represented counsel “In the trial court objection appeal) no at all to made his than counsel other preliminary sufficiency question information. The the form of the or to may circumstances, whether, be it in these at once arises open assume, deciding, it appeal. is without We shall raised on here.1 upon the appellant’s reviewable rests that it is claim The question Maryland of lack 725 b that a provision Rule (which under Rule jurisdiction of the indictment or of failure information) charge ‘shall to an offense a criminal includes purview of the arrest warrant. within the evidence inconsistency which between the two Therefore, no we see proceeding.’ any during He by time the court noticed overlooks ordinarily so defined as 5 i the is under Rule ‘Court’ the fact that Certainly Appeals. this the Court of not to include is is which Rule 725 b expressly court to included as a is not applicable, included appellant within the argument appellant to show that it offers no and the necessary implication. Neither does as a result falls to offense whether the failure discuss question provision as to the that a of Rule 885 jurisdiction decided this be raised and of the trial court seem a court, though below. This would raised and decided not open question to since it is at least basis for review sounder power jurisdiction exercising to make has criminal whether a court guilt impose finding under an indictment or to sentence offense, at 540-41. charges the matter.” Id. but we do not decide no open whether the matter was did decide will be noted that the Court not It appellate appeal. court at that intermediate There was no for review on directly appeal came to this Court. time. An by way only In Walston v. Sun writ of certiorari. Our review now 567, Judge Co., for the Court that supra, Barnes said 267 Md. at Cab procedure Assembly “appears that the certiorari intended that the General discretionary appeal.” provide He further stated: for a was to contemplated kept in mind that the statute “It should also be granting desirability public involved in interest that certiorari us limit certiorari. will consider on an certiorari relevant to those presented by petition and the matters are shown to us by logically by petition us unless we be those considered should granting in our order for consideration those matters circumstances, extraordinary sum, except we in most grant appeal resulting of writ of from a petition only questions and matters raised those cross-petition questions, in absence of a course, raising unless, questions, limited in we have additional granting on that certiorari the issues to be considered our order appeal.” at 569. Id. here, by Judge sufficiency pointed O’Donnell out of the indictment dissent, the trial court nor the Court in his Special Appeals. was raised neither certiorari, Moreover, petition to us for the writ of defender,

prepared assigned public stated: questions presented “The for review are as follows: (a) the District Court Does the issuance of an arrest warrant toll the statute of limitations? necessary suspend (b) filing Is of an indictment running matter? of the statute of limitations a criminal contrary (c) of the lower Court to the law of this Is the decision State?” stated, grant previously of the writ of certiorari here was “limited As our rejecting solely [McMorris’] whether the trial court erred judgment acquittal prosecution in that the motion for barred circumstances added.) . . .” Under the limitations . the statute (Emphasis judicial regard of sound it as in the interest we do sufficiency of the indictment. address ourselves administration to of limitations so as of the statute warrant invocation would prosecution. prevent Turner v. factually by McMorris, upon relied A. 2d 39 contrary to that compel a conclusion inapposite and does not expressed. here appellant

Judgment affirmed; pay the costs. O’Donnell, J., dissenting: majority which reached

I in the result concur Although I do not believe judgment. affirms the properly before the Court limitations was question of us, properly before is it here Special Appeals, nor certiorari, I notwithstanding scope of our writ of by my expressed brethren agree views with the nonetheless limitations, as tolling of the statute of concerning the — that count the indictment count of related to the first court, when it was effectively in the trial dismissed it, jury. As I see from consideration withdrawn decide an issue Special Appeals undertook to — have instead limitations but should properly raised whether the second question of reached the Despite inexact charged properly an offense. granted we question on which wording scope of the it. certiorari, equally should have reached we by my expressed from the views I further dissent must exception upon brethren, engraft Rule which placed a, imprimatur and the it relates to count upon in the that count dangerous substance violate the controlled

conspiracy “to Maryland being Article sections State of laws of the to a demand agree I resort .” Nor can 276-302. . . to bolster 715 a could be used particulars Rule under insufficiency count 2. obvious general imposed under a one sentence Since but (on 2 jury, both count guilty, returned verdict heroin)), I (charging unlawful distribution count 3 judgment. would affirm the

A conviction under the third count of the indictment permissible carried a maximum Maryland sentence under (1957, Repl. Code 1971 Supp.]), Vol. Cum. Art. [1975 (1) (b) years imprisonment. of 20 imposed The sentence upon appellant (eight years), designation without as to counts, supported by was his conviction under count 3. See 27, 32, 182 Md. Harris v. 31 A. 2d 300, 305, Felkner v. 146 A. 2d 427-28 predecessors our imposed held that a sentence “[i]f general under guilty verdict of under an indictment of several counts does permissible not exceed the maximum unchallenged under counts, the accused successfully complain.” Bryant See also 531, 537, (1962), where, 185 A. 2d holding although appellant’s upon conviction count 3 of an erroneous, indictment had been the sentence should not be disturbed, predecessors pointed our though out that “[e]ven guilty verdict of alleging under count a second offense possession narcotics, was erroneous after appellant acquitted had been [charging under count 1 possession heroin], general unlawful sentence of ten years we find to be sustainable under count 4.” proceedings

Nowhere conducted in the trial court was used; the term “limRations” ever pre-trial there was no raising motion filed that issue as to the institution of the prosecution, nor was it ground made appellant’s for the judgment acquittal. motion for In his brief in the Court of Special Appeals, appellant stated: “this limitations issue brought judge’s attention, to the trial indirectly” albeit — but the record appellee, does not bear this out. The in that court, in appellant its brief stated: “the did not raise the question during of the statute of limitations the trial below. Accordingly, appellee question would submit that this is not properly this before Honorable Court. Rule 1 Despite 1085.” record, this status of the the Court of then, assuming arguendo question properly 1. The State court, the issue. before the briefed Special Appeals limitations, undertook to decide the issue of fully which was briefed before it. (n.

Although majority 2) pass upon solely question whether the trial court erred rejecting judgment acquittal motion for [McMorris’] by prosecution for was barred Thus, majority . . limitations reaches the statute — Special apparently did the limitations issue Appeals solely through appellant’s motion for judgment acquittal. it, motion under Rule 755 cannot be used as

As I see such a limitations, which must be raised a vehicle to raise State, 177 under Rule 725 b. motion before trial See Ruble v. (1940), 600, 603, 11 A. 2d 456-57 cited State, 117 Md. majority Curry in n. 2. however See (1912), although suggesting that 83 A. proof alleged in the in its to the date state is not confined prove a misdemeanor it must the commission of period of limitations.” time within the “at some raising defense which mandates the The same Rule (Rule b), additionally provides before trial of limitations of the indictment jurisdiction or the failure that: “[l]ack any time be iloticed the court at charge an offense shall to 885, applicable 1085 and during proceeding.” Rules Appeals to this Special respectively to the Court of provide question as to Court, expressly that “a each raised and decided court be jurisdiction of the lower lower and decided or not raised this Court whether court.” Putnam v. 200 A. 2d 59 Chief

Judge Bruñe, writing Court, recognized distinction between an indictment inartificially which “is so drawn, open attack,” ... to to and one [as be] which “completely fails to state an offense.” He there wrote:

“The next then is whether or not the sufficiently information states an offense to sustain the conviction. The rule which seems to be generally recognized draws a line of demarcation between an indictment information which completely and one state an fails offense alleges all the elements of the offense intended to apprises the accused of the nature and cause of the against him, accusation even though it is allegations defective its or is so inartificially drawn open that it would have been attack in Jur., the trial court. 27 Am. Indictments Informations, 189, p. 735. In 191 of the same § § work, p. 736, it is stated that ‘a verdict will not cure allege a criminal or the omission failure offense any allegation; essential objection such as well as verdict.’ See also: fatal after before Wharton on Criminal Law and Procedure (Anderson Ed.), 1881, 1883, 1885; 42 C.J.S. §§ Information, Indictment pp. 1348-51; . . (emphasis added) .” 541, 234 Md. at 200 A. 2d at 61.

Judge expressed Bruñe further the view that the failure of indictment, an thereof, or a count offense, to state an went jurisdiction to the court, of the trial and such issue was thus Court, review-able in this objection even if no had been made — to the indictment or the count the trial court. 234 540, 1, Md. at 61, n. 200 A. 2d at n. adopted by

This view Special Appeals the Court of State, App. 148, 6 Baker v. Md. (1969), 250 A. 2d 677 where court, finding indictment, that an appellant attempt smuggle with an “to narcotics into of House charge offense,” Correction did not

stated:

“We do not think exercising that a court criminal jurisdiction power, jury trial, has the in a to allow a go jury, case to or in a court trial to make a guilt, finding of or impose either case to sentence, under an charges indictment which no State, offense. See Putnam v. 1 at note question 540-41. We believe that the of the failure of charge the indictment to an offense is a of matter jurisdiction that, therefore, permits Rule 1085 appellate review question whether App. tried and decided below.” 6 Md. A. 2d at 680. applied view

That same was followed and in Vuitch v. App. 389, 398-99, 271 A. 2d denied, 261 Md. 729 cert.

Although majority circumvented the of the issue sufficiency being outside scope certiorari, purports their limit question limitations, discussion they nonetheless put upon approval they their when count hold that “[a] reading of the arrest warrant and second of the count charge forth in indictment shows set the arrest warrant to be one within the second count the indictment.” added). (emphasis my question validity view that of the

It is charge forth was before the court set trial pursuant b, appellant 725 when the made his motion to Rule judgment acquittal of a under Rule on the basis jurisdiction” in “lack of the trial court because of “the failure properly an offense.” The issue was [count] Special pursuant Appeals, before the Court to Rule holdings supra, its Baker v. Vuitch jurisdiction.” Despite as “a matter of supra, imprecise language delineating scope used in question solely by question, certiorari since arises appellant’s judgment acquittal, virtue of motion for my view that the further the failure of count

77 properly us, jurisdictional state an is as a offense before 885, expressed the views matter under and under Rule supra.2 State, Putnam v. Rights 21

Article Declaration every guarantees prosecutions, in all criminal man “[t]hat right him; against a informed of hath to be the accusation (if Indictment, charge, copy a or have due time . required) his defence . prepare for early recognized

It was at law common that an indictment Law, might counts, Chitty 1 see separate contain Criminal 248-50, theory separate fact and [is] “[e]ach Regina, 5 See Latham v. indictment. . . .” Best Smith (161 Eng. States, 635, (1864); Rep.) 643 Dunn v. United 284 390, thus, (1932); S.U. 393 each count of an must indictment embody complete single distinct and accusation of a crime every complete count in an be indictment must in itself State, 314, 140 describe an 216 Beard v. offense. Md. denied, 672, 679, A. 2d Imbraguglia cert. (1958); 358 846 U. S. State, 174, 178-79, (1944); 184 Md. 40 A. 2d 330-31 State, 155, 165,

Simmons v. (1933). 167 A. See 64 2d, 41 Am. Jur. Informations, also Indictments and 221 requirement recognized Such is a, providing Rule 716 or more offenses “[t]wo the same separate indictment in a count for each offense.” Every indictment, whether for an offense at law common proscribed by statute, for one must characterize crime particular and also describe offense with such certainty reasonable as to prepare enable an accused to his protect against subsequent defense and also him prosecution for the same offense. Pearlman v. Md. (1963); 192 A. 2d 767 Seidman v. Md. (1962);

A. 2d 109 Willis v. 2d 85 A. An sufficient, if it informs person argued 2. The briefed and this Court both appellant appellee. against him, required of the as accusation Rights, charge “if is

Article 21 of Declaration prevent with sufficient definiteness to the accused made being charged again with in future from the same offense State, 285, 100 (1953). Leet prosecution.” A. v. 2d 789 State, (1928), 149, 143 A. it 156 Md. Neusbaum v. it was pointed out that common law essential “[a]t person charged, show the of the the indictment should name occurred, jurisdiction which .. . . within . . [the offense] .. . such of the facts circumstances incident reasonably necessary it, identify to and to crime as were court whether a crime had been committed enable the to see charged.” 156 A. 2d at The court as Md. at 875. case, recognized while “it within the further in that legislatures power prescribe ... the form of may information, omit or such form indictment [that] regarded necessary at common law . .. as averments legislature, may simplify form of while it an information, necessity placing dispense cannot containing presentation therein a distinct offense 156, 143 allegations of all essential elements.” 156 Md. at its in an indictment undertakes A. 875. Where a statutory if the offense, it is sufficient violation charge a sufficiently and is language the statute charge follows the charge particular specific accused of to inform the Bryant 2d 190 v. A. against him. supra. supra; Willis v. v. Seidman are prescribe a short form indictment Statutes simplified form used contains generally upheld, provided the charge. purports to of the crime it elements the essential State, supra. Pearlman statutory merely alleges charge a violation of a

Where a terms, more, generic without by use of the statute’s offense validly See United an offense. state it is insufficient Supreme Cruikshank, S. 542 where the 92 U. States v. stated: elementary principle pleading, criminal “It is an offence, it whether definition where the by statute, generic be at common law or ‘includes terms, it is not that the indictment shall sufficient charge generic in the same terms as in offence definition; species, hut it must state the particulars. PL, must descent to Arch. Cr. Pr. and object is, first, of the indictment to furnish description the accused with such a against him will defence, enable him to make his and avail acquittal himself of his conviction or protection against prosecution a further for the cause; and, second, same to inform the court of the alleged, facts they so that it decide whether support are sufficient in conviction, law to if one this, should be stated, had. For facts are to be conclusions of law A up alone. crime is made of acts intent; and these must be set forth in the indictment, with particularity time, reasonable ” place, and (emphasis added) circumstances.’ 92 U.

S. at 558.

That Court further stated: hardly think will it

“[W]e be claimed that an statute, good indictment would be under this which charges object conspiracy of the to have been ‘unlawfully wickedly each, commit every, all, singular punishable by the crimes ” imprisonment prison.’ (emphasis State added) 92 U. S. at 559. State, VillageBooks, App. 274, 286,

See also Inc. v. 698,705, denied, (1974). 323A. 2d cert. 273Md. 723 Conspiracy persons occurs when two or more combine to act, commit a crime or to do an unlawful or to do a lawful prosecution act an unlawful means. conspiracy, “In it is sufficient to state the indictment [or count] conspiracy object it; and the . . . means which it accomplished out, being intended to be need not be set only prove charge, matters of evidence to and not the 578, State, 584, crime itself. . . Hurwitz v. 200 Md. 92 A. 2d (1952); Cohen v. 235 Md. see 200 A. 2d 368, 374 (1964). (counts conspiracy

The 2) appellant’s counts 1 .and in the indictment, used charging conspiracy the formula for authorized requires Code Art. that such conspiracy, count .set forth the members of the as well as n state “briefly object conspiracy.” -ofthe See Pearlman v. supra; 97 A. 2d Adams v. other grounds, 347 U. S. 179 rev’d only requirements .2 meets one -of two Count of the required formula to be used in the short-form indictment conspirators; that it named McMorris and another as the it properly species, fails however to state the included within .generic dangerous term “controlled substance laws” to -properly -object United conspiracy. set forth the See Cruikshank, Although charges a concert supra. States n action, allege any particular it does not substantive prohibition generic dangerous within the term “controlled laws,” object charged conspiracy. as the All substance alleges conspiracy that it is that a was entered into to violate statutory proscriptions within at least 28 different included generic embrace of the term used. appellee, argument in both its and its brief this Court, object of the 2 valid because the contends that count only stated, generally need and since the conspiracy is to be carried out need not means which the “fairly in the McMorris was and be stated reasonably of the offense with which he was inform[ed] They rely in charged.” on the decision of this Court Hurwitz indictment, upon State, count in an supra, where a v. obtained, charging conspiracy a to “violate a conviction Maryland,” upheld. lottery the State of laws of Judge Markell, opinion Hurwitz, In who wrote the Chief conspiracy Court, reviewing the law of and for the after conspiracy is to be noting the means which a only proven accomplished, matters of evidence to be are charged in that trial, object that the found sufficiently set forth. He stated: case was 423-438, comprises sections “The subtitle ‘Lotteries’ lottery in the inclusive. ‘The laws of State’ scope in with indictment is identical instant referred to sections 423-438 and with laws (in part) in section 435. The words section lottery a laws of the State’ have ‘to violate sound, by comparison promiscuous 423-438, substance, participate sections mean broadly defined. lottery, a in the conduct of tautology, 423-438, with considerable Sections lottery, lottery drawing selling ticket prohibit a (sec. 423), keeping permitting to be used a house or (secs. 427-428), place selling lottery as a tickets (sec. having possession bringing into the State tickets, short, every 429) lottery practically lottery except buying incident of the conduct of a ticket, lottery added). (emphasis

[*] ^{[*] [*]} authority later “On the v. Buchanan State court, in view of the evident in this cases State’, lottery we hold meaning laws of the of ‘the instant the first count of the validly and not a mere conclusion stated an offense holding In so of law. we limit our decision general us, approve as a case and do before object the statement formula for the ...... laws conspiracy, ‘to violate ’ ” 588-89, (emphasis added). 92 A. State. 200 Md. at 2d at 580. Hurwitz, Court, recognizing “[u]nless lottery prohibit purchase

implication laws of a lottery (by otherwise), . prohibition of sale or . .” ticket pointed complicity and concert of were out that a action necessary lottery. peculiarly for the conduct of a reasoning applied holdings were Hurwitz 2d 582 A. cert. McGuire (1953); 344 U. S. Scarlett v. denied denied, (1953); 345 U. S. 955 2d cert.

A. Adams v. (each State, 202 Md. 97 A. 2d 285 supra; Rouse v. conspiracy lottery laws charged a “to violate the of of which Maryland.”). State of recognition a The rationale Hurwitz — lottery “to violate the offense gravamen lottery operation. laws, etc.,” participation in a was the recognized charging one Although the there sufficiently generic terms conspiring to violate the statute’s conspiracy, various acts object of because the stated the laws, lottery in Art. as violations proscribed — lottery operation of a one transaction constituted restricting holdings clearly its held that it the Court charged. conspiracy type of Because to that arising very nature of conduct of a from the peculiarity theory of lottery, single transaction-related events with a applied charging one cannot be a count Hurwitz dangerous generically, “the controlled to violate laws.” substance 27, designated through of Art. as the

Sections participate make it unlawful to in count sections violated variety acts, may, and in some a of unrelated must, totally independent of other occur instances lottery statutes, proscriptions. Under the enumerated proscribed those in the different acts participation incidents in the conduct of a are but different sections Code, lottery; proscriptions set forth the 28 different dangerous substance of the “controlled within the embrace violations, not laws,” of various incidents relate to a number lottery. larger as the conduct a operation, a such through 302 are diverse violations such Within sections glue, instructing to sniff child on how as the by a non-prescription dispensing of controlled substances heroin, as the pharmacist, as well distribution or in packaging paraphernalia used either possession of substances, operation administering such and even prohibited All in the various “nuisance the acts house.” together, component sections, when taken do constitute grand scheme, enterprise, do the parts or criminal specified “lottery violations within the laws.” conspiracy allegation lottery the a violate the While of “to object conspiracy, undertakes to set forth the of the laws” lottery, allegation a i.e., conspiracy a the of conduct of dangerous the “controlled laws” violate substance does not spell object conspiracy, species out the a nor the such through conduct within sections 302 of the criminal 276 Art. 27, purportedly object is the of the confederation of parties charged. While the means which the conspiracy accomplished forth, was to be need not be set specificity required, some is within the formula authorized Art. offense establish criminal which is object conspiracy. Although of the be the it is not necessary precise that an indictment or state the count statutory alleged violated, “[tjhere sections to have been specification be such bring must ... as to within particular portion charge] of the statute on which is [the 148, 157, App. based.” 6 Md. See Baker v. 250 A. 2d (1969); 683 App. 583-84, v. Kirsner Md. A. 2d only reported opinion, sustaining validity of a charging a “to violate the narcotic laws of Maryland”

the State of is Special that the Court of Appeals in Quaglione App. 571, 292 A. 2d where that court found that “rationale and holding in supported finding Hurwitz” a that such a count validly object (emphasis stated the conspiracy, added). Judge Carter, writing court, pointed for that out that: “The meaning phrase of the ‘narcotic laws the State of Maryland’ apparent appellant evident and to the meaning lottery same extent of ‘the laws of the were apparent State’ held to be evident and to the accused in App. Hurwitz.” 292 A. 2d at 792. analysis

Such an however failed to differentiate between the intrinsic “lottery difference between the labelled laws” and those vast numbers of sections in the sub-title in Art. 27 relating previously noted, to “narcotic laws.” As from the Hurwitz, “lottery a rationale laws” set forth cohesive group prevention at the violations aimed conduct — single enterprise lottery while sub-title of merely group violations,

“narcotic laws” sets forth a only by generic related term “narcotic” and the proscriptions contained therein are not aimed at prevention single enterprise, multiple criminal diverse violations. Quaglione, Special Appeals implicitly acknowledge recognize

seemed to this and to distinction might misplaced, Hurwitz they their reliance on when set footnote, forth, by way they aof were “not unmindful Hurwitz,” approve of the fact that this Court did not “as a general object formula for the statement of a conspiracy allegation] ‘to violate the . . . laws of the [an ” apply That however Hurwitz State.’ court elected to it found the “factual in because situations” the two cases “analogous.” App. were 15 Md. at 292 A. 2d at reading Hurwitz A however of the facts in both and in Quaglione only similarity in indicates that the the factual presented respective (a) were situations cases used, Courts sweeping which both form of the count approved, (b) inculpatory evidence, the nature of the parties in both were third cases recitations they procured respective had contraband from it, I defendants. As see these bare similarities are not — Quaglione bring charge a enough to “to laws of the State” within the ambit of violate the narcotic holdings Hurwitz State. v. presented A here situation similar to that was before this Kiefer, years ago, in State Court 77 A. 1043 (1899), upon majority strongly which the relies their limitation issue. determination of the Kiefer, presentment charged merely grand jury a liquor noting law.” There “violation of alone, presentment without return of a formal indictment, only was to toll not the statute of sufficient limitations, support charge thereon, but to and conviction charge vague predecessors that that our found too Judge Fowler, writing failed set forth an offense. for the to Court, reasoned thus: say every presentment

“It is sufficient charge clearly the accused of the inform should him, be against and that it should preferred enable the sufficiently explicit and definite to prepare indictment. But the State’s officer only neither. The presentment in this case does — liquor law” charge forth is “violation set various Sunday on whether a sale violated, liquor Sunday law be ways that the appear. any day, does not by a sale to a minor on the indictment on which It is clear that prepared could not have been defendant tried this indictment . . . those circumstances Under and technical be said to be the formal cannot contained statement said, presentment for, presentment, as we have general impossible terms that is in such it is . . .” accusation is. determine what from added). 172-73, (emphasis 44A. at 1044. Kiefer, recognized Thus, in that even the form this Court — presentment when to toll

of a invoked limitations so, equally in an a count must sufficient is, mere show what the and that a its face to accusation allegation of a violation of . . . laws” was insufficient. “the

Barring exception permitted in Hunvitz the one for “a laws,” lottery a in violation of the count an indictment charging conspiracy specific enough, must be within its confines, place to the defendant on notice the nature of of precise charge against Though by him. the means which charged conspiracy out, was to be carried and the specifics conduct, offense, of the as the basis for the are evidence, pleaded, matters of which need not be the count specificity must set forth with sufficient the criminal charged, certainty, “to enable an conduct reasonable prepare protect against his defense and also him accused to A subsequent prosecution for the same offense.” want of a compliance goes very jurisdiction to such court to charge. try which the State Absent the offense undertook compliance, guarantee of Article such Rights gratified. Declaration is not validity reasons, reaching count in the

For these jurisdiction,” indictment, hold, “a matter of I would as charge offense. an it failed to by 2 be reference back it, I validated Nor, see can count — though by even the trial court dismissed count charged conspiracy, object did set forth the

count Redding. .” Ken .. Det. namely “to sell heroin to must out, pointed each count As earlier single crime, a complete embody accusation a distinct an offense. Rule complete in itself and describe be and must allegation in one made however that permits a “[a]n incorporated by may reference another count.” count reference, a incorporation count must stand Absent such merits, its This is on content. fall, its own based holding Turner v. 219 A. precisely the very predecessors, rejecting the where our 2d 39 majority, stated: embraced thesis here difficulty attempts this appellee to overcome “The allegations in one count of [insufficient setting startling forth the somewhat indictment] larceny allegation set forth proposition be read count of this indictment can second set forth the indictment’s together with matters crime. as to the more serious first count so case, do we nor think it cites no The State law, support proposition correct be said to that an earlier count now contention portion alleged in later incorporate the facts any specific reference thereto.” count without 414, 219 2d omitted) 242 Md. A. at (footnote at supra, Imbraguglia 2d also A. at See in an where held that the second count this Court receiving goods, indictment, charged of stolen which stolen, alleged specify goods to have been which did not defective, though the first even larceny, property charged grand did describe the holding that the the theft. to have been taken facts, receiving provide “as to substantial does count information, referring either with or without sufficient appellant plead other count to enable the a conviction offense,” subsequent (emphasis in bar of a trial for added), Court, Kearney quoting from 48 Md. 16 (1877),stated: allegation any thing

“The want of a direct description substance, nature, material of the crime, supplied by manner cannot intendment, always held, and hence it has been every requisite it is an essential indictment that allege it should all matters material to constitute particular charged, crime with such positiveness directness, as not to need the aid implication.” 180, of intendment or 184Md. at 40 A.

2d at 331. Although appear deficiency Rule 712 a would to reach the Imbraguglia, Turner, by permitting found in an incorporation by reference, attempt count made no such incorporate object conspiracy charged 1, in count by reference or otherwise.

Both the warrant which tolled the limitations for count conspiracy charged and the in count are violations within generic dangerous term “controlled laws,” substance theoretically thus are embraced within the ambit of Art. 276-302; since count however incorporate by does not

§§ allegations charged reference the either counts or standing alone, must be read as such, pointed and as out above, charges conspiracy of a multitude of violations of dangerous the “controlled substance laws” and is not limited, as is count to a “to sell . . .” heroin. majority

When reading thus states: “a of the arrest warrant and the second count of the indictment shows the charge set forth in the arrest to be one within the warrant second indictment,” count (emphasis added), they attempt to allegations buttress the invalid warrant, set forth in count and have engrafted exception upon They have, despite Rule 712 a. incorporation by reference, no permitted sufficiency

88 which, give validity 1 2 count in the indictment to to count patently invalid, contrary standing alone, is and is to the State, supra. holdings in Turner v. expressed by my

Lastly, agree I cannot with the view with made about “the second count brethren the observation they 3), indictment,” (in had of the when note footnote appellant particulars, pursuant to made a demand upon placed a, thereby Rule have limitation 715 so, inferentially scope proof, of the his failure to do sustains validly charged 2 view an offense. that count particulars guard to true of a bill of is It is that the office taking by surprise by giving him against notice an accused rely upon to which the State intends facts case, limiting scope proof prosecuting its State, Hadder v. 238 may presented be trial. See which at amplify (1965). to 341, 209 A. 2d 70 It serves Veney See charged in allegations are the indictment. 159, State, (1968). 246 2d It is not v. 251 Md. A. intended particulars provide information a bill of however indictment, purpose or Its is necessary to a valid count. charge. v. supplement in a Seidman cure the defects 147, Lassotovitch, State, supra; v. 162 Md. 159 A. see State particulars filed, does not become (1932). When a bill of 475, 482, indictment, State, Delcher 161 Md. v. part of an hence, supply the (1932) be used to 37, 41 cannot A. in a count or required to set forth allegation lack 314, 187 2d State, supra, A. at 114. v. at Seidman indictment. Thomas v. succinctly stated As words, a (1938): “In ‘bill A. other 688, 197 designed uphold an insufficient particulars is not only indictment used where the to be change the offense upon It cannot demurrer. sufficient fundamentally any way an indictment charged aid nor in ground objection on the although remove an bad, charge].’ 31 C.J. 753.” specifics uncertainty [of form short prescribing Although statutes are conspiracy) as to (here Art. right ground “that upheld on the generally accusation particulars to demand defendant against injury,” protects necessary him it is nonetheless simplified contain form used “the essential purports charge.” elements the crime short [the form] supra, Pearlman v. 771; See at 192 A. 2d at State, supra, 156-57, 875; Kelley Neusbaum v. 143A. at 642, 647, 181Md. 31 A. 2d Seidman, the defendant was one conspiring with a named individual with “certain other * * * persons are whose names Jurors [Grand] unknown, Pandering to violate the Laws of the State of Maryland.” charged He was in seven other with counts relating substantive violations same statute to Pandering (Art. 27, 430). Similarly, none of those counts earnings forth the of set names of the women whose he having received, merely alleged was but earnings had received sums he certain “from the a certain of unknown, is to woman whose name the Jurors aforesaid who engaged prostitution then and in . there . .” Seidman challenged validity the of the each of Indictments the specified ground that them none of the names of women the earnings allegedly money. from whose he had illicit received though response in appellant’s Even the particulars, demand for a bill of forth the of set names the women, this Court held that if names the of the women had Jury, been known to Grand when the had indictment returned, they designated been should in have been so counts; and failure names, known, that the to their if include defective, date, if made even at a later prior trial, supplied to the names were the defendant a particulars. bill of case,

In this if second count of the been indictment had charge, to particulars sufficient a of constitute bill would available, been court, have of discretion the trial to amplify allegations count, delineate in the and even to scope proof. If, instance, limit count had alleged a conspiracy drugs,” arguably “to sell narcotic then object forth, been would have set and a particulars might specify bill have been available to drug type State, supra, Thomas v. narcotic involved. See Howes v. 301-02; 197 A. at 119 A. particulars, seems, A bill of it could be used to ascertain the means which it is contended that a conspiracy charged was to be carried out. Seidman, expressed particulars Under the view a bill of — court,

supplied appellant assuming the trial its discretion, granted such demand could not have sufficed missing supply what was from the content count count, cured the could could not have defect not fundamentally a count which bad be used validate completely it, I failed state an offense. As see availability particulars bill of is not reference to validating standpoint only irrelevant from the they the issue of equally irrelevant on limitations count 2. relate to sufficiency majority, addressing “the by restricting

indictment,” to the narrow does so itself by concluding question, and posed by the certiorari judicial interest sound “in the is not ju- Notwithstanding it. to reach administration” they point it “was issue, out that of this nature risdictional Special court, nor the Court in neither the trial raised properly us. same before This Appeals,” and is not thus equal as to the failure force could be made observation motion, raise limitations required appellant, the in the court. trial 391, 568, 298 A. 2d Co., Md. 559, v. Cab 267 Sun Walston bolstering 4) (footnote as majority cites (1973), which the 396 certiorari, Judge of review on scope the

the limitation regard to the practice that noted “[o]ur further Barnes practice of closely the certiorari follows procedure certiorari States.” United Supreme Court the Court practice that follows Supreme Court jurisdiction over it has satisfied, only must be jurisdiction over had properly lower court case, but that Ry. & L. C. it. See review before under the cause Mansfield Company v. Glidden 379, (1884); Swan, 111 U. S. 383 v.Co. v. Civil Service Oklahoma (1962); Zdanok, 370 U. S. 537 J. (1947) (Frankfurter, 146 Commission, S. U. 330 91 though question on certiorari before concurring). Even issue, specific may be limited to Supreme Court sponte, may raised sua and that jurisdiction be question of Mitchell See may for a want thereof. dismiss the case Court Furlaud, v. (1937);McCandless 237, 244 Maurer, v. 293 U. S. Kirkland, Jurisdiction (1934); 75 Robertson 293 U. S. States, pp. 620-21 Supreme the United practice 1951). upon Based (Wolfson Kurland ed. why, no reason Supreme Court, I know of followed contrary adopt a should questions, we jurisdictional practice. though well settle that

Our own decisions trial argued appeal, nor raised briefed nor neither Court, this when before court, nonetheless raised e.g. Stacy v. jurisdictional issue. See question involves a (1970); 236 2d Tate Burke, 269 A. Heath v. Md. (1964); A. 2d 882 455, A. 2d validity was not though the issue of the count

Even in the court, nor either counsel directly trial raised Appeals, expressly nor appeal Special to the Court direct certiorari, I spelled believe within our writ out offense, going as it does failure of 2 to state an court, properly within ambit of jurisdiction trial our review. notes “we do not properly of whether the issue of limitations was by McMorris,” they point pleas, raised out that such cases, criminal were abolished Rule 725 a and must now pursuant Notwithstanding be raised to Rule 725 b. b, non-compliance majority with Rule nonetheless proceeded pass upon the issue of limitations as to the first count, only if It it had been raised. can be assumed that they Special Appeals passed do so because the Court of issue, granted the limitations and we certiorari “limited

Case Details

Case Name: McMorris v. State

Court Name: Court of Appeals of Maryland

Date Published: Feb 25, 1976

Citation: 355 A.2d 438

Docket Number: [No. 77, September Term, 1975.]

Court Abbreviation: Md.