Blondes v. State

Orth, C. J., delivered the opinion of the Court. LEONARD SAUL BLONDES, a lawyer and a Montgomery County Delegate to the General Assembly of Maryland from 1962 to 1970, was charged, in the 1st and 2nd counts of indictment 12157, with violating Code, Art. 27, § 23, providing that it shall constitute the offense of bribery for “any member of the General Assembly of Maryland * * * [to] demand or receive any bribe, fee, reward or testimonial for the purpose of influencing him in the performance of his official duties, or for neglecting or failing to perform the same.” 1 On 9 December 1971 Blondes was found guilty under the 1st and 2nd counts at a bench trial in the Circuit Court for Montgomery County and the same day he was sentenced generally to pay a fine of $2,500 and costs. 2 On appeal to this Court we reversed the judgment. We found, under the Supreme Court’s interpretation of legislative privilege as applied to Art. 10 of the Maryland Declaration of Rights and § 18 of Art. Ill of the Maryland Constitution, that substantive evidence of legislative acts ⁷¹⁷ performed by Blondes, introduced in evidence against him, over his objection, were inadmissible, and because not harmless, required a retrial, the provisions of § 50 of Article III not nullifying the Speech and Debate clauses insofar as a bribery prosecution of a member of the General Assembly was concerned. The trial court having erred in relying upon inadmissible substantive evidence of Blondes’s legislative acts, we ordered a new trial purged of references to legislative acts prohibited by the legislative privilege.

Blondes v. State, 16 Md. App. 165 , decided 11 September 1972. On 2 April 1973 Blondes filed a motion to dismiss the indictment. In reversing the judgment rendered at the first trial we construed § 50 of Art. III of the Maryland Constitution “as a limited mandate providing for punishment of State legislators guilty of bribery if indictment and prosecution therefor can be accomplished without impinging on the legislative privilege by introducing evidence of legislative acts.” Blondes alleged that the indictment against him was found solely as a result of the Grand Jury’s inquiry into his legislative motives, communications and acts as a member of the General Assembly of Maryland. He claimed that the “inquiry is and was constitutionally prohibited and beyond the jurisdiction of the Grand Jury as a part of the judicial branch of the Government and, therefore, the Indictment so returned exceeded the jurisdiction of the Grand Jury and must be dismissed.” The State answered the motion on 4 April.

It alleged that the indictment “was based in part on, or returned in spite of, the voluntary testimony of the defendant himself as to his legislative motives, communications and acts,” the conclusion that the indictment was based “solely” upon such evidence being “totally speculative”. It claimed that if the indictment, returned by a legally constituted and unbiased grand jury, were valid on its face, it was enough to call for trial on the merits. It was aware, however, of the language in Blondes , and recognizing Blondes’s “own express desire not to be tried by indictment,” suggested that the court accept a Bill of Information in lieu of the challenged indictment. On 4 April ⁷¹⁸ 1973 the State filed an information.

Its two counts were identical to the first two counts in indictment 12157. A hearing on the motion to dismiss the indictment was held the same day. Blondes argued that the indictment should be dismissed because it was returned on the basis of improper evidence. He pointed to the language in Blondes v. State, supra, above quoted, construing § 50 of Art. III “as a limited mandate providing for punishment of State legislators guilty of bribery if indictment and prosecution therefor can be accomplished without impinging on the legislative privilege by introducing evidence of legislative acts.” The State, upon inquiry by the court, said that it intended to proceed to trial on the information and not on the indictment.

The court suggested that the motion to dismiss the indictment was moot “if the State is not going to try this case on the basis of the indictment but only on an information.” 3 It saw no reason, in the circumstances, to argue the indictment. It said to defense counsel: “If the State doesn’t call the indictment for trial, why must I make a disposition of the motion to dismiss nonexistent prosecution? The case is prosecuted on the information. * * * If your client were tried under the information and found not guilty, certainly that would be ‘res adjudicata’, I should think, as to the indictment, and if found guilty, he certainly could claim — you certainly could claim double jeopardy if the State ever tried to bring him on for trial under the indictment.” The defense agreed, but thought the indictment should be “nolprossed or withdrawn or dismissed, or some definitive kind of action taken in reference to the indictment.” The court opined that the disposition of the indictment was the option of the State’s Attorney. The State suggested that Blondes be arraigned on the information and the case set for trial thereon.

Blondes objected and the court agreed that the defense should have time to study the information before arraignment. Trial had ⁷¹⁹ been set for 10 April and the court said it was prepared to proceed on that date. It reserved ruling on the motion to dismiss the indictment. Upon motion made by Blondes and hearing had on 5 April, the court, Mathias, J., entered an order removing the case from the trial calendar for 10 April and assigned it for trial in the Circuit Court for Montgomery County on 7 May before Prendergast, J., all motions to be filed on or before 18 April.

On 18 April Blondes filed a motion to dismiss the information. The motion alleged that the information had been filed for the sole benefit of the State without request by Blondes so as “to deprive the defendant of the benefit of the ruling of the Court of Special Appeals in limiting the evidence properly to be offered upon a retrial and to avoid a ruling on the defendant’s Motions to Dismiss the Indictment and to Inspect the Grand Jury Minutes.” 4 Blondes claimed that the State had elected to abandon prosecution under the indictment and by so doing the commencement of prosecution under the information would place him twice in jeopardy and deny him due process of law. He further averred that the filing of the information was in violation of Maryland Rules 708 and 709. The case came on for trial on 7 May 1973.

The State declared that it was going to call the criminal information for trial. Defense counsel said that if that were the State’s election, he would like it to dispose of the indictment. The court thought the motion to dismiss the information should be next considered and heard from counsel on that motion. The defense argued that the prohibition against double jeopardy precluded trial on the information.

The remand for a new trial contemplated trial on the indictment and if that is abandoned the prosecution is abandoned. The defense also argued that the filing of the information violated Rules 708 and 709 in that an information could not be filed for a penitentiary misdemeanor without the consent of the accused. After extensive argument, the State proposed, in order “to expedite these proceedings and to simplify the ⁷²⁰ considerations before the court” that it “enter a nolle prosequi to both of the remaining counts in the indictment only; namely, the first and second counts, and may the record reflect that this action is being taken prior to the time when the indictment or any other charge was called for trial, but at any rate, pursuant to the provisions of Maryland Rule 711,1 would enter a nolle prosequi to the indictment.” After further discussion, the State requested that “the court arraign the Defendant on the information, that the Court reserve its ruling at this time as to the motion to dismiss the information and that the court proceed with trial.” The court heard further from defense counsel and thereupon said with respect to the motion to dismiss the information: “I am not persuaded that I should grant that motion, and I overrule it.” It gave at length its reasons therefor and concluded: “At any rate, I can always reconsider before the trial is concluded, but my disposition is, and I do rule that the motion to dismiss the criminal information is overruled.” The defense requested and was granted a short recess. When court reconvened, defense counsel presented another point on the motion which he had not pressed in argument but had set out in the written motion — that the information was based on the same evidence produced before the Grand Jury that returned the indictment and that it was the result of Blondes’s “legislative motives and so forth.” The court agreed that the point had not been abandoned.

Defense counsel then raised another point: “I would suggest to the court and urge that the nolle as to the indictment in this case, which is in the identical words as the information in the case, and each of those filed in the same criminal proceedings, Your Honor, would be tantamount to a nolle of the information.” The court did not think so. The court inquired if all the discovery had been disposed of or if there were anything “you think you should in all fairness have before the case is called for trial that you don’t have?” There was a brief colloquy on the matter between the court and the State. Defense counsel interjected at this point: “MR. SIMPSON [Defense Counsel]: If Your Honor pleases, I had not anticipated the Court’s ruling, ⁷²¹ and I feel that now I should advise the Court that I in view of the Court’s ruling just recently announced, that I should appeal from that ruling, and will do so in writing.

I realize that is unusual. I had not anticipated it. I have authority to the effect that appeal will lie— THE COURT: I think it does. MR.

SIMPSON: — prior to the trial on the merits under the circumstances of this situation. THE COURT: I think you could proceed in either one of two ways. I think you could not appeal and still preserve a point, but I think it was the Westmoreland case, I believe it was Westmoreland, it was a case of mine where I went to great pains to preserve a record for the accused and did him too much of a favor by proceeding to trial after denying a motion to dismiss, that was an error, and there was a reversal. I believe this is an appealable decision.

MR. SIMPSON: The thing that concerned me about trying to preserve is that I don’t have any substantive authority for that position, but I do for the position that it is appealable at this point, and I don’t want to lose that. THE COURT: Well, you are not losing it. You could go to trial and preserve it just as you would a ruling, an adverse ruling made on a demurrer in a proceeding at law, but if you were to take an appeal, this is to say if you were to file an order for appeal here and now, which is what you indicated you are about to do, I doubt that I could proceed with the trial, Mr. Bours.

I think this is a final order. MR. BOURS [Assistant State’s Attorney]: Your Honor, this is a matter that concerned the State. As a matter of fact, I will confess I asked Your Honor to reserve the ruling for that reason. ⁷²² THE COURT: You did?

MR. BOURS: I asked— THE COURT: I said I could reconsider it, but— MR. BOURS: I don’t think at this point that it is necessary, but I would ask that the Court consider the case of Raimondi versus State cited at 8 Md. App. Reports at Page 468, * * The Assistant State’s Attorney urged that under Raimondi the denial of the motion to dismiss was interlocutory. The court said: “Here there has been no appeal, so it seems to me I could rescind the order, the ruling made, and reserve ruling on it because I said in the course of the opinion that I could always reconsider, and, perhaps, grant the motion, if I agree with Mr. Simpson’s arguments on the law later on, or, in the alternative, as in the Raimondi case, proceed to — I think the Raimondi case is a little different.

The Raimondi case, the point made there was — well, I am going to adopt the former course. I will reserve ruling on the motion, but I have indicated I intend to grant it [sic], although I could change my mind, as I have indicated, because I don’t think this trial should be delayed. You have indicated an intention to appeal, so I will reconsider your motion to dismiss and reserve ruling on it. MR.

SIMPSON: I would say this, if Your Honor pleases: as I said, Your Honor, when I came just a moment ago,. I had not anticipated the Court’s ruling, and I have now sat here in handwriting and written out the appeal. I think that the Court would be in effect depriving the — THE COURT: No. I think you could take your appeal, in any event, but I could proceed with the trial by reserving the ruling, as in effect I said I ⁷²³ could always reconsider this if I were persuaded I was wrong in not dismissing the information at the time you filed it, but I don’t think as a matter of law, not as a matter of fact but as a matter of law, I could possibly dismiss the information at this time. Very good.

I will reserve ruling. MR. SIMPSON: May I note an objection on that? THE COURT: You have an objection to it and an exception.

MR. BOURS: May we proceed with an arraignment of the Defendant, Your Honor? THE COURT: I think we should. Call the case.

THE CLERK: Criminals Number 12,157, the State of Maryland versus Leonard Saul Blondes. MR. SIMPSON: If Your Honor pleases, I just want to file this. It is rather rough looking, but— THE COURT: I will make a note on here.

This is filed. I will make a note that before the order was filed, the Court reserved ruling on the motion to dismiss the information, and, therefore, can not entertain — therefore, the appeal is premature. That is my note. You have your exception.

MR. SIMPSON: Yes, but my recollection of it was that Your Honor had denied the motion and had said that you thought it was the final order and appealable, and thereafter at the State’s request changed it to reserving it. That is my best recollection. MR.

BOURS: I would like to indicate that I— MR. SIMPSON: The record would speak for itself. MR. BOURS: Since you are making statements about the record, I would like the record to reflect I didn’t ask Your Honor to change his ruling but simply indicated that that had been my purpose in asking the Court to reserve its ruling originally, and that the decision of the Court is, of course, the ⁷²⁴ decision of the Court, and I cannot make the Court— THE COURT: Is there any reason why I could not reserve ruling at this time and revoke the motion for appeal based on the Ramandi [Raimondi] case?

The Court will revoke the motion for appeal based on Ramandi [Raimondi]. Very well. Call the case for arraignment.” After Blondes was arraigned and elected a court trial, 5 the State then requested the luncheon recess be called to give it opportunity to further consider the right of the accused to an immediate appeal from the denial of the motion to dismiss the information. The court recessed.

When the court convened after the recess, the transcript reads: “MR. BOURS: If the Court please, Mr. Simpson suggested just prior to the recess a case known as Brown versus State in 2 Md. App. Reports at Page 388, the apparent holding of which is that there is an absolute right to an immediate appeal where the Court denies a motion based upon a claim of violation of double jeopardy provisions of the United States Constitution. I think very precisely speaking the questions that are raised at this point in the proceedings are, number one, whether the Court has, in fact, made a final denial of the motion to dismiss' the information, which was admittedly on the grounds of alleged double jeopardy, and if not, then I believe that the Court would be within its rights to reserve ruling at this time and make a ruling at some time later in the proceedings and before judgment. However, the State recognizes that there is at least some possibility that after a trial on this case, ⁷²⁵ provided there were a conviction, that on appeal the Defendant might wish to not only litigate the issue of whether the Court denied his motion to dismiss the information but might also wish to litigate or go behind the Court’s ruling in its most recent ruling reserving a decision on that question and make the contention that the Court reserved its ruling, reconsidered its denial and reserved its ruling solely to prevent the Defendant from appealing, and although I am not sure this is an appropriate way for me to state this, I would respectfully request that if that is not the case, if the Court note that for the record that there is no attempt being made here to prevent the Defendant from appealing a final ruling on his motion but that instead it is the Court’s desire not to finally rule on the matter because of the merits of the motion, not to finally rule on the matter and to reserve its ruling, I think if that is made clear on the record, there is no chance for error in these proceedings.

THE COURT: Well, my understanding of what has transpired is this: We spent the greater portion of the morning hearing argument on the motion to dismiss the criminal information. I was apparently so fascinated by it that I didn’t think of the constitutional implications of any decision made but it was not my intention then, and I think I indicated that I would reconsider at any time during the trial the matter of the motion to dismiss the criminal information on the grounds of double jeopardy or on any other ground touching on the validity of the motion, or any constitutional question that might be raised in it. I did unfortunately announce, and I will not repudiate anything that has actually happened, that I was disposed to and did deny the motion to dismiss the information saying that I would reconsider at any time during the trial. ⁷²⁶ I should have said that I will reserve the ruling on it at that time, a matter that was preserved, or recognized by our Court of Special Appeals in the past because I know and I promptly said that this is a matter of constitutional right and it is appealable. There is no question about that.

There followed a recess, and after the recess Mr. Simpson announced that he was going to take an appeal on behalf of the Defendant. I then said, and I think quite promptly, under those conditions I rescinded the order made and would hold the matter under advisement. Meanwhile Mr. Simpson was writing something as I was announcing that ruling, and I saw him writing, I didn’t know what he was writing, but he promptly said: I am writing up an order for appeal. I said: I have already rescinded the order because it is not my intention to delay this trial, and I can always reconsider, as I said I would, and I hold the matter under advisement.

I will reserve ruling on it. Thereafter the order for appeal was filed.” There followed lengthy discussion in which counsel and the court participated and which ended as follows: THE COURT: The Court of Appeals, or certainly the Court of Special Appeals has approved the practice when a case is specially set, as this one is, we know that, that whereby the Court may reserve ruling on any such motion, in any event, and proceed with the trial, and then make the ruling at the termination of the case. If the ruling is to grant the motion, that is the end of the case. If the ruling is that the Defendant is not guilty as a matter of fact, then it makes no difference what the ruling is, but the Judge still has to rule on that motion, and I will rule on it at the proper time and in such a fashion as not to foreclose your right of ⁷²⁷ appeal; and I think this Court continues to have jurisdiction, as I have rescinded the order denying the motion to dismiss, and did it before the order for appeal was actually filed, Mr. Simpson, when I learned that you contemplated an appeal.

You have waived nothing, and I think the Court has jurisdiction. Now let’s proceed. Do you agree with that Mr. Bours? MR.

BOURS: Yes, Your Honor, I do. THE COURT: I know Mr. Simpson doesn’t agree. MR. SIMPSON: No, it’s not — well, we don’t have a time stamp.

I was writing. The Court was talking. Now, I am not going to make any great point over the fact, and I didn’t do it for the purpose of delaying anything. I came here to try the case.

THE COURT: Let’s try it. Very good.” The trial proceeded. On 9 May, at the close of all the evidence and after argument of counsel, the court acted on the motion to dismiss the information: “The Court upon receiving the Motion to Dismiss the Indictment heard argument and announced that it would deny the motion at that time but would reconsider later on as the trial progressed. Shortly thereafter defense counsel annoúnced that he intended to take an appeal from that decision, as it was a final decision, of which I concurred, but I then announced that I would rescind the ruling and reserve ruling on the Motion to Dismiss.

Defense counsel, however, filed an order for appeal but said with commendable candor that it was not his intention to delay the trial and he did not wish to do so. However, he felt it necessary to file the appeal to avoid waiving any right which his client might have. ⁷²⁸ The Court continued to reserve ruling and I have reserved ruling right up to this time, and I do not consider that any waiver has been effected adverse to the Defendant or to the State, for that matter. The motion is very much alive at this time, but I am of the same opinion as I was then. That is to say that I believe it should be dismissed, and under the authorities of United States v. Tateo in 377 U.S. 463 and various other cases which were considered at the time, I am disposed to announce the same ruling at the appropriate time.” The court then considered the question of the innocence or guilt of Blondes.

After discussing the law in point and the evidence adduced, it announced the following rulings: “First, the motion to dismiss the information is overruled. Secondly, I find the Defendant guilty under both the first and second counts.” On 11 June Blondes was fined $2500 and costs. 6 He appealed. The four questions Blondes presents on appeal involve the information on which he was tried. I “Was the appellant tunee put in jeopardy in violation of the Fifth Amendment to the Constitution of the United States when the lower court required that he stand trial on charges in an Information after the State had entered a nolle prosequi to identical charges in an existing Indictment on which trial had already begun?” The question centers on the taking of a deposition by the State of one of its witnesses, Revelle Stuart Armiger, on 1 May 1973.

The State moved on 30 April 1973 to take the deposition, alleging that the witness was material to a ⁷²⁹ presentation of the State’s case and that he might be prevented from attending the trial by absence from Maryland. Rule 727. After a hearing, the court ordered that Blondes and his attorney appear the next day at the office of the State’s Attorney for Montgomery County for the taking of the deposition. 7 Blondes and his counsel appeared on 1 May as ordered. Before the witness was sworn defense counsel requested the State to inform him “which of the charging documents we are taking this deposition pursuant to, namely, the indictment, returned on May 24,1971, or the information filed on April 4,1973 * * The State refused to answer the question, stating: “This is a deposition of the witness.” Defense counsel made clear his position: “Let the record show on the question of double jeopardy, I raise that again and state that this is a step in the prosecution of the Defendant, Leonard Saul Blondes, and we object to the proceedings. * * * Also, we demand that the State elect under which charging document the State is proceeding.” The witness deposed.

At the conclusion of his testimony defense counsel renewed his demand that he be advised “what document or charging document this deposition is or will be offered in reference to. Whether it is the indictment * * * or the information.” The Assistant State’s Attorney stated his view for the record: “This is a deposition conducted pursuant to Court Order and pursuant to the provisions of the Maryland Rules and I am not required to say at this time or at this juncture what its use will be. If nothing else, it is a matter for the Court to decide.” Defense counsel persisted: “When will the accused be advised of the nature of the procedures under which he will be tried?” The prosecutor replied: “I will just state that the State will offer this deposition, if it is proper to do so, at any trial on either charging document that may occur. So that the accused should be informed that regardless of the nature of the charging document or its title, form number or whatever, that this deposition will be offered if proper to do so, in ⁷³⁰ connection with any trial that may occur on said charging document that is related, of course, to the facts involved.” The prosecutor spread on the record that “I have not heretofore and do not now personally excuse the witness, Mr. Armiger, from attendance at the trial.” On the day set for trial, the State informed the court that Armiger was in California.

It sought a ruling from the court whether it could use Armiger’s deposition “in the trial that is about to commence some time later this morning. Of course, the case has not been called for trial as yet, since there are some pending motions, I believe, the Defendant wished to have disposed of prior to trial.” The court asked the prosecutor: “Don’t you think this has to be considered * * * when and if there is a trial, at the time of trial when the deposition is proffered in evidence, or do you want to have a preliminary hearing now to conserve the time of Mr. Miller [James Robert Miller, Esq., Armiger’s counsel].” The prosecutor replied: “That was part of my intention, because Mr. Miller has a meeting beginning at 11:45 this morning. He is the President of our Local Bar Association.” The court asked defense counsel if he objected to the deposition and defense counsel said that he did. The court then inquired if defense counsel had “any objection to proceeding a little bit out of order as to hearing Mr. Miller as to the whereabouts of his client as to conserve the time of Mr. Miller only?” Defense counsel replied: “No, sir,” and the court said: “Very well.

We will proceed on that basis to conserve counsel’s time.” Mr. Miller was examined as to the availability of Armiger. Thereupon the State offered in evidence the transcript of the proceedings of 30 April pertaining to the issue whether the deposition of Armiger should be taken. Defense counsel objected: “First, I don’t know in what proceedings he is offering this. I endeavored to find that out at the time of the taking of the deposition and prior thereto.” The State thought the deposition was as to both the indictment and information or as to either one, depending upon which case is tried. “If the information is tried, we would seek to offer the deposition during the trial of the information.

If for some reason the indictment were to be tried, we would offer the deposition as to the indictment. ⁷³¹ Both the charges are the same.” Defense counsel, referring to the proceedings of 4 April said it was his understanding that the State had abandoned the indictment. The prosecutor explained that the issue as to what pleading the deposition was taken was subsidiary to whether the deposition would be abandoned. “* * * I would suggest that we should proceed to trial on the information, but I don’t believe the admissibility of the deposition is dependent upon which charging document the Court later tries, if any.” The court ruled: “I am disposed to agree with that. I think when you come to offer the deposition in evidence, it would be offered in evidence in whatever case is called for trial, and if that happens to be the information, it is offered in that case.” The court then admitted the transcript of the proceeding of 30 April in evidence as going to the reason why the deposition was taken. Defense counsel urged again that he be advised in what case the State was going to proceed.

The court elicited from the State that it intended to call the criminal Information for trial and that it would offer the deposition “in that case and not in the indictment”. Defense counsel said: “If that is the State’s election, I would now like him to dispose of the indictment.” The court observed that the State had not offered any evidence. ‘¶ think the first thing to do now that we have made some preliminary consideration of the problem as to the admissibility of the deposition, I haven’t made a ruling on its admissibility because it hasn’t as yet been offered, but I think the next order of business is your motion to dismiss [the information].” 8 When the deposition of Armiger was offered by the State during the guilt stage of the trial, it was admitted in evidence by stipulation preserving Blondes’s “objections to the taking of said deposition on the ground that it constituted a step in the prosecution and double jeopardy is preserved, but objection will be made only to such questions as are considered objectionable for other reasons in the same fashion as if the witness were on the stand.” ⁷³² The double jeopardy clause of the Fifth Amendment to the Constitution of the United States, providing “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb”, is applicable to the States through the Fourteenth Amendment. Benton v. Maryland, 395 U. S. 784, 787 ; Baker v. State, 15 Md. App. 73, 76 . 9 It is axiomatic that a person cannot be twice put in jeopardy for an offense until he has been once put in jeopardy for that offense. Necessary to any consideration of the constitutional clause, therefore, is a determination when jeopardy attaches.

At the onset we note that the first trial at which Blondes was convicted has no bearing on the double jeopardy question before us. The law is clear that when an accused is convicted of a crime and the conviction is reversed on appeal, the constitutional double jeopardy clause does not preclude a retrial on the charge. Gray v. State, 254 Md. 385 ; Booth v. State, 16 Md. App. 524 . What Blondes argues is that the new trial, mandated by this Court on reversal of the judgment entered at the first trial, commenced before the State entered the nolle prosequi without his consent to the two counts remaining in the indictment.

He then invokes the rule that a nolle prosequi entered after trial has begun, without the consent of the defendant, operates as an acquittal. Greathouse v. State, 5 Md. App. 675, 689 ; Boone v. State, 3 Md. App. 11, 25-26 . “[I]t has long been settled under the Fifth Amendment that a verdict of acquittal is final, ending a defendant’s jeopardy, and even when ‘not followed by any judgment is a bar to a subsequent prosecution for the same offense.’ ” Green v. United States, 355 U. S. 184, 188 , quoting United States v. Ball, 163 U. S. 662, 671 . See State v. Adams, 196 Md. 341, 348 ; State v. Shields, 49 Md. 301, 303 . Thus, he reasons, he could not thereafter be tried on the information because it charged the same two offenses of which he had been acquitted under the indictment, for to try him thereon would put him twice in jeopardy.

He concludes that the denial of his motion to dismiss the information was error. ⁷³³ The crucial question is whether, in the context of jeopardy attaching, the new trial commenced, before the entry, without Blondes’s consent, of the nolle prosequi of the two counts remaining in the indictment. The generalization is that a person is in legal jeopardy when he is placed on trial before a court of competent jurisdiction on an indictment or information or other authorized charging document which is sufficient in form and substance to sustain a conviction. Brown v. State, 2 Md. App. 388, 396 . We have said that the constitutional policies underpinning the Fifth Amendment’s guarantee against double jeopardy are implicated when an accused in a criminal proceeding is placed on trial before the trier of fact, whether the trier be a jury or a judge, Jones v. State, 17 Md. App. 504, 506 , that is, when trial commences, Baker v. State, supra, at 78.

With respect to a jury trial, the law is clear as to the time when jeopardy attaches. “The accused is ordinarily said to be placed on trial when the jurors have been sworn in his case.” Hochheimer, Criminal Law, 1st ed., § 71. “When the jury are assembled in the box and sworn, the trial commences * * Id., § 236, citing 1 Chitty Cr. L. 553. “The actual trial of a cause is said to commence, when the