Duncan v. State

Orth, J., delivered the opinion of the Court. Murphy, C. J., concurs in the judgment and filed an opinion concurring in the judgment at page 395 infra. Upon our review on writ of certiorari, we reverse the judgment of the Court of Special Appeals which affirmed the judgment of the Circuit Court for Baltimore County entered upon the conviction at a bench trial of James Edward Duncan, a police officer, for the crime of misconduct in office. Duncan v. State, 37 Md. App. 330 , 377 A. 2d 567 (1977).

We reverse the judgment of the intermediate court because the prosecution of the offense of which Duncan was found guilty was barred by limitations. I Statutes of limitations in criminal cases create “a bar to the prosecution, and the time within which an offense is committed becomes a jurisdictional fact. The state, therefore, has the burden of proving affirmatively the commission of the offense charged within the period limited by statute for its ³⁸⁷ prosecution,” and “[i]f the prosecution relies upon an exception to remove the bar of the statute of limitations, the burden of proof is on the prosecution to show the applicability of the exception.” 1 Wharton’s Criminal Evidence § 21 (13th ed. 1972). Furthermore, criminal limitations statutes are to be liberally interpreted in favor of repose.

Toussie v. United States, 397 U. S. 112, 115 , 90 S. Ct. 858 (1970); United States v. Habig, 390 U. S. 222, 227 , 88 S. Ct. 926 (1968); United States v. Scharton, 285 U. S. 518, 522 , 52 S. Ct. 416 (1932). The general rule with regard to whether an offense was committed within the period limited by the statute for its prosecution is simply stated: “Statutes of limitation normally begin to run when the crime is complete.” Pendergast v. United States, 317 U. S. 412, 418 , 63 S. Ct. 268 (1943); United States v. Irvine, 98 U. S. 450, 452 (1878). II In Maryland, misconduct in office is a common law misdemeanor. 1 It is corrupt behavior by a public officer in the exercise of the duties of his office or while acting under color of his office. Perkins on Criminal Law 485 (2d ed. 1969).

See Hitzelberger v. State, 174 Md. 152 , 197 A. 605 (1938). The corrupt behavior may be (1) the doing of an act which is wrongful in itself — malfeasance, or, (2) the doing of an act otherwise lawful in a wrongful manner — misfeasance; or, (3) the omitting to do an act which is required by the duties of the office — nonfeasance. State v. Carter, 200 Md. 255, 262-267 , 89 A. 2d 586 (1952); Chester v. State, 32 Md. App. 593, 601-610 , 363 A. 2d 605 , cert. denied, 278 Md. 718 (1976); Perkins on Criminal Law 482-492 (2d ed. 1969). 2 There being no statute in this State prescribing punishment for committing the offense, an offender is subject to the ³⁸⁸ common law punishment — imprisonment or fine to which may be added removal from office and disqualification to hold office. 4 W. Blackstone, Commentaries ¹⁴¹. Therefore, prosecution for the crime must be instituted within one year after the offense was committed.

Maryland Code (1974) Courts and Judicial Proceedings Article § 5-106 (a). 3 As we have indicated, “[generally speaking, a statute of limitations begins to run as soon as the offense is completed, and ordinarily there is no difficulty in fixing this point of time, because nearly every crime consists in a definite act or a definite result of some act. However, there are crimes which are continuing in character. As to these it is held that the statute does not begin to run until the last act is done which viewed by itself is a crime.” 1 Wharton’s Criminal Law and Procedure § 181 (1957). In Ellingham v. State, 163 Md. 278, 280 , 162 A. 709 (1932), in discussing the nature of a continuing offense, we adopted a definition taken from State v. Jones, 201 N. C. 424, 426 , 160 S. E. 468 (1931): “ ‘Wharton defines a continuing offense as a transaction or a series of acts set on foot by a single impulse, and operated by an unintermittent force, no matter how long a time it may occupy. [Wharton’s Criminal Pleading and Practice § 474 (8th ed. 1880)].

It is an offense which continues day by day. * * * The prosecution of an offense of this nature is a bar to a subsequent prosecution for the same offense charged to have been committed at any time before the institution of the first prosecution, but it is not a bar to a subsequent prosecution for continuing the offense thereafter, as this is a new violation of the law.’ ” See State v. James, 203 Md. 113, 119-120 , 100 A. 2d 12 (1953). 1 Wharton’s Criminal Law and Procedure § 181 (1957) puts it this way: “An offense is deemed to be a continuing offense *? within the statute of limitations when there is a continuing course of conduct as distinguished from the continuance of the result or effect of the original crime.” When mere possession of a prohibited article is a crime, the offense is a continuing one because the crime is committed each day the article remains in possession, as there is a continuing course of conduct. See Marron v. United States, 8 F. 2d 251, 254 (9th Cir. 1925), aff’d, 275 U. S. 192 (1927). Ill The crime of which Duncan was convicted was charged in a true bill returned by the Grand Jurors for Baltimore County and filed in the Criminal Court for Baltimore County on 13 May 1976. 4 It presented that Duncan: “on or before the 12th day of March in the year of our Lord nineteen hundred and seventy-six at Baltimore County, aforesaid being then and there a public officer to wit: a police officer for Baltimore County, State of Maryland, unlawfully, knowingly and corruptly did, under color of his office aforesaid, endeavor to obstruct, impede and pervert, the due administration of public justice and did obstruct, impede and pervert the due administration of public justice by retaining possession of goods to wit: with knowledge that said goods were obtained unlawfully by Michael Ronald Mally, said action by JAMES EDWARD DUNCAN being in wilful disregard and violation of the duties of said JAMES EDWARD DUNCAN, as a police officer for Baltimore County, State of Maryland, thereby constituting a perversion of the trust reposed in said JAMES EDWARD DUNCAN, as a police officer for Baltimore County, State of Maryland; against the peace, government and dignity of the State. (Misconduct in Office-Common-Law)” ³⁹⁰ Duncan claims that if, in fact, the offense was committed by him, it was perpetrated at a time antedating the one year statutory limitations period.

The State counters by urging that the crime was a continuing one, and as such, was still being committed within one year before the date of the presentment. Ordinarily, a continuing offense is marked by a continuing duty in the defendant to do an act which he fails to do. The offense continues as long as the duty persists, and there is a failure to perform that duty. For example, a failure to register in compliance with the Alien Registration Act is a continuing offense, United States v. Franklin, 188 F. 2d 182, 187 (7th Cir. 1951), as is the failure to keep records as required by maximum price regulations, United States v. Belfast Fabrics Corporation, 65 F. Supp. 567, 567-568 (S.D.N.Y. 1946), failure to register for the draft, Fogel v. United States, 162 F. 2d 54, 55 (5th Cir.), cert. denied, 332 U. S. 791 (1947), rev’d per curiam on other grounds, 335 U. S. 865 (1948), and nonsupport', Richardson v. State, 30 Del.

(7 Boyce) 534, 537 , 109 A. 124 (1920); Towns v. State, 24 Ga. App. 265 , 100 S. E. 575 (1919). When a public officer is the person who fails to perform the duty, he has committed the crime of misconduct in office by the corrupt act of nonfeasance. Thus, when the act of misconduct is the permitting of unlawful bookmaking activities to operate it is a continuing offense.

State v. Hozer, 19 N. J. 301, 116 A. 2d 193 (1955) and State v. McFeeley, 136 N.J.L. 102 , 54 A. 2d 797 (1947). 5 It is understandable, therefore, that the State would have the misconduct in office ascribed to Duncan to be by an act of. nonfeasance so as to be a continuing offense. It asserts: “[Duncan] was under a ³⁹¹ continuous obligation as a police officer to, at the very least, report an offense of which he had knowledge as well as to return goods which he possessed, knowing them to have been unlawfully obtained. [Duncan’s] violation of his duties cannot be isolated to any one point in time because the violations, like the duties, were continuous.” For those reasons, the State submitted that “the misconduct in the case at bar was still in progress at the time of presentment.” The State suggests, and we agree, “that the guideline in this case... is the nature of the crime involved.” We simply cannot read the indictment as charging that Duncan “failed to lodge a complaint against Mally,” or, in other words, committed an act of nonfeasance by failing to institute prosecution of Mally. Former Maryland Rule 712 a, applicable in this case, 6 provided that “[a]n indictment shall contain a plain, concise and definite statement of the essential facts constituting the specific offense with which the defendant is charged.” See Goeller v. State, 119 Md. 61, 63 , 85 A. 954 (1912). The offense is determined by the facts stated in the indictment.

Carter, 200 Md. at 262 (quoting Cargile v. State, 67 Ga. App. 610, 611 , 21 S.E.2d 326 (1942)). It is perfectly clear that by the facts stated in the indictment here, the corrupt act constituting the crime of misconduct in office was the retaining of goods by Duncan with knowledge that they were obtained unlawfully by Mally. Plainly, this was malfeasance.

No reasonable interpretation of the indictment will support the view that it was sufficient, as the State suggests, to charge nonfeasance by Duncan’s failure to institute a prosecution of Mally for Mally’s illegal acts. IV It was established a century ago that the criminal withholding of money or property was not a continuing offense. In United States v. Irvine, supra, an attorney was charged with unlawfully withholding money paid by the United States for his client under the pension laws. He pleaded limitations.

The government pointed out that the attorney had received the money and had continued to hold ³⁹² it for 20 years. It urged that “every year, every month, every day, was a withholding, within the meaning of the statute.” 98 U. S. at 452 . The Court did not agree. It thought that “[i]t is unreasonable to hold that twenty years after this he can be indicted for wrongfully withholding the money----” Id.

It said: “There is in this but one offence. When it is committed, the party is guilty and is subject to criminal prosecution, and from that time, also, the Statute of Limitations applicable to the offence begins to run.” Id. It explained: “Whenever the act or series of acts necessary to constitute a criminal withholding of the money have transpired, the crime is complete, and from that day the Statute of Limitations begins to run against the prosecution.” Id. The Court held that the crime was not a continuous one to the time of the indictment and that the Statute of Limitations constituted a bar to the prosecution.

Id. at 452-453 . Irvine was the cornerstone in a series of decisions which interpreted concealment of assets in bankruptcy cases as not to be a continuing offense, leading to legislative enactment expressly making such concealment a continuing offense. 7 Other cases have held that the wrongful retaining of property is not a continuing offense. For