Greathouse v. State

Orth, J., delivered the opinion of the Court. The history of this case, as yet not tried on the merits, runs an unusual course. Four separate indictments, charging offenses proscribed by Md. Code, Art. 27, §§ 7, 8 and 10, have been returned against the appellant. Each indictment arose from the same alleged acts of the appellant involving the same burning or attempting to burn personal property and a building on 15 April 1966.

Indictment No. 7851 was filed on 7 June 1966. It contained four counts: (1) burning personal property of another over the value of $25 — § 8;- (2) attempting to burn personal property of another — § 10; (3) burning an office building — •§ 7; (4) attempting to burn such building- — § 10. The docket entries show that the appellant was arraigned on 12 August but no plea was entered. On 22 August he filed a motion for discovery and inspection and a motion to. dismiss the indictment.

Qn 16 September a continuance -was granted -upon petition of the appellant. -On 20 October the State answered the motion for discovery and on 24 October a supplemental motion for discovery was filed. On 28 October an amended motion to dismiss was filed and denied upon hearing. The same day the State’s motion to amend the indictment by interlineation was granted. On 9 February 1967 a motion by'the State for a continuance was granted.

On 15 February the appellant filed a motion for a speedy trial. On 8 May a request by the State to place the case on the stet docket was denied, whereupon the State entered a nolle prosequi. Indictment No. 8323 was filed on 8 February 1967. It contained six counts.

Its first count was the same as the first count in No. 7851 except that it omitted the word “unlawfully” in charging the offense. Its second count differed from the second count of No. 7851 in that it added the words “wilfully and maliciously” in charging the unlawful attempt, added that the ⁶⁷⁹ value of the personal property was over $25 and also charged a certain preliminary act proscribed by § 10. The third count charged a storehouse breaking with intent to commit a felony — ■ to wit: The burning of personal property of another over the value of $25. The fourth count, charging the offense charged in the third count of No. 7851, differed from that count in that it described the office building as “not a parcel of a dwelling house.” The fifth count, charging the offense charged in the fourth count of No. 7851, also added such description and charged also a preliminary act proscribed by § 10.

The sixth count charged a storehouse breaking with intent to commit a felony, to wit: The burning of the office building. 1 The docket entries show that the appellant was arraigned on No. 8323 on 9 February 1967 and pleas of not guilty were entered by direction of the court, the appellant standing mute. On 28 March the appellant moved to inspect the minutes of the grand jury and for a bill of particulars. Both motions were denied upon hearing on 14 April. On 8 May he filed a motion for discovery and inspection and on 11 May a motion to dismiss.

The motion to dismiss the indictment was granted upon hearing on 29 June. 2 Indictment No. 8851 was filed on 8 September 1967. It contained four counts. Its first count charged the wilful and malicious burning of the personal property, over the value of $25 and of another — § 8 — and specifically listed the property. The second count charged the attempt to burn such property and a preliminary act proscribed by § 10.

The third count charged the burning of a building, not a parcel of a dwelling house — § ⁶⁸⁰ 7 — and particularly described the ownership and location of the building. Count four charged the attempt to burn such building and a preliminary act proscribed by § 10. Each count also charged that the appellant “aided, counseled or procured” the burning. The docket entries show only: “Sept. 8, 1967 — Presentment : Indictment: True Bill, fd.” Indictment No. 8934 was filed on 5 October 1967.

Its four counts read substantially the same as the four counts in No. 8851 except that each count omitted the phrase “or aided, counseled, or procured the burning.” The docket entries show that the appellant was arraigned on 19 October and a plea of not guilty was entered “by his country”; that he filed a motion to dismiss the indictment on 14 November; that on 3 January 1968 “order of court that motion to dismiss Indictment by Defendant is hereby dismissed” was filed and on the same day, upon motion of the appellant, that order was vacated and a hearing on the motion to dismiss was set; that the hearing was held on 28 February and that by order of 6 March the motion to dismiss was granted as to the fourth count and denied as to the first, second and third counts. On 20 March the appellant noted an appeal from the denial. The motion to dismiss indictment No. 8934, filed on 14 November 1967, attached as exhibits copies of the three preceding indictments, copies of the docket entries pertaining thereto, a transcript of the hearing on 8 May 1967 at which a nolle prosequi was entered to indictment No. 7851, a transcript of the hearing of 9 February 1967 whereat the State was granted a continuance as to indictment No. 7851, a copy of a motion for a speedy trial on indictment No. 7851 “as previously requested in open court at the hearing on February 9, 1967” (the motion was filed 15 February 1967), a copy of a letter dated 5 July 1967 from defense counsel to the State’s Attorney claiming the denial of a speedy trial and alleging prejudice to the appellant in that “his business has been ruined”, he is now not able to obtain a fair trial, one witness has been “lost” and others may be unavailable. It suggested that if the charges were to be resubmitted it should be done immediately “without waiting for the next regular session of the Grand Jury” and if so a motion to dismiss for lack of a speedy trial would be filed.

The grounds ⁶⁸¹ for the motion were that the appellant had been placed in jeopardy by the nolle prosequi entered as to indictment No. 7851, that he had been denied a speedy trial and that the indictment was defective. At the hearing on the motion on 28 February 1968 a stipulation was received to the effect that the exhibits filed with the motion were “correct and true copies of what they purport to be” and that the stipulation “may be used by (the court) in determining whether to grant or deny” the motion. No other evidence was produced, although counsel for the appellant and the State’s Attorney argued at length. At the conclusion of the hearing the court took the matter “under advisement.” On 6 March an opinion and order dated 4 March were filed.

The court found that the fourth count charged the common law offense of attempt but failed to allege that the offense was “unlawful.” For that reason it granted the motion to dismiss the fourth count. Holding that the first, second and third counts were valid and finding no merit in the contentions as to speedy trial and double jeopardy, it denied the motion as to the first, second and third counts. The contentions on appeal are in substance those raised by the motion and argued at the hearing thereon. The appellant contends that the lower court erred in the denial as to counts one, two and three for the reasons that: I the indictment is defective in that: 1) the first and third counts fail to allege the acts were committed unlawfully; 2) the property alleged to have been burned as charged in the first and second counts is not encompassed within Art. 27, §§ 8 and 10 but is excluded under the doctrine of ejusdem generis; 3) the first and second counts fail to apprise him of the location of the personal property he is alleged to have burned or attempted to burn.

II he was denied a speedy trial; III he was denied due process of law; IV he has been placed in jeopardy on the charges and cannot be further prosecuted. ⁶⁸² I THE ALLEGED DEFECTS IN THE INDICTMENT The general rule is that an appeal in a criminal case is premature until after final judgment. State v. Harman, 199 Md. 209, 212 . See Md. Code, Art. 5, § 12; Md. Rule, 1035(a). There has been applied through the years, with qualifications, a corollary to the general rule; action of the trial court which denies an absolute constitutional right, although seemingly interlocutory, will be reviewed on appeal.

Pearlman v. State, 226 Md. 67 . Thus it is established that an appeal will lie, prior to a trial on the merits, on the denial of a motion asserting a violation of the constitutional right to a speedy trial, Stevenson v. State, 4 Md. App. 1, 10 , or that the accused was twice placed in jeopardy, Brown v. State, 2 Md. App. 388, 394 . But the action of the lower court here in denying the motion to dismiss with respect to the alleged defects in the indictment did not involve the denial of an absolute constitutional right and is not within the corollary to the rule. The appeal in that regard is premature and we do not consider the contentions with respect thereto.

II SPEEDY TRIAL The appellant sought a speedy trial only on indictment No. 7851. Trial under No. 7851 had been set for 15 February 1967, but on 8 February indictment No. 8323 had been filed and the appellant was brought into court the next day for arraignment on that indictment. At arraignment he stood mute, and not guilty pleas were entered by direction of the court. See Md. Rule 721.

The State then requested a continuance of No. 7851, arguing that the appellant had been granted a continuance on 16 September 1966 because he needed time to prepare his case and that the State was “entitled to one continuance at least for preparation of this case.” The appellant objected, asserting that he was ready for trial as set, that he had summoned about 20 witnesses, “many of whom had been served” and that trial had been set for several weeks. He demanded a speedy trial “in the old case.” The court granted the continuance with no date ⁶⁸³ specified for trial. On 15 February the appellant filed a written motion for a speedy trial on indictment No. 7851. At that time both No. 7851 and No. 8323 were outstanding, but the State made no effort to bring No. 7851 to trial and the appellant made no demand for the trial of No. 8323.

On 8 May, in open court, the State requested that No. 7851 be placed on the stet docket. Defense counsel objected — “we feel he has been denied a speedy trial by now and to stet it would be further evidence of that.” The court refused to consent to the entry, see Md. Rule 718, stating that “the State should make up its mind whether it is going to proceed in 7851, or in the subsequent case, to either dismiss it or try it.” The State said that it could enter a nolle prosequi, the court agreed that it had a right to do so, and the State did so over objection. The appellant has consistently relied on the validity of his contention that the failure to bring him to trial on No. 7851 between the period 9 February to 8 May 1967 constituted a delay in the constitutional sense. 3 This may account for his failure to demand a speedy trial on each of the subsequent indictments. With respect to No. 8323 he filed motions on 28 March 1967 to inspect the grand jury minifies and for a bill of particulars, both of which were denied upon hearing on 14 April, and on 8 May for discovery and inspection.

On 11 May he moved to dismiss No. 8323. The grounds for that motion or the reasons it was granted upon hearing on 29 June do not appear in the record, but apparently it was not because of a violation of a constitutional right; defense counsel stated in argument on the subsequent hearing on the motion to dismiss No. 8934 that it was because of “the defection in the description of the property.” From 29 June to 8 September there was no indictment pending against the appellant. During that period, on 5 July, defense counsel wrote the State’s Attorney, suggesting, if the prosecutor felt compelled to re-submit the charges, that it be done immediately without waiting for the next session of the grand jury. But he did not ask for a speedy-trial in the event the appellant was again indicted, but said that ⁶⁸⁴ he would then move that the indictment be dismissed for lack of a speedy trial.

On 8 August the State’s Attorney replied, confirming a conversation with counsel concerning the letter of 5 July, that the case would be re-submitted to the grand jury during the first week of September and if this was not satisfactory, he would proceed on a bill of information upon request. The record does not show, nor does the appellant allege, that he sought an immediate trial by waiving his right to action by the grand jury pursuant to Md. Rule 709. Indictment 8851 was returned on 8 September. The record does not show, nor does the appellant allege, that he demanded a speedy trial of No. 8851, nor does it show other than that the appellant was presented, indicted and a true bill filed.

The appellant in his brief states that on 16 May 1968, since this appeal was noted, a nolle prosequi was entered. On 5 October 1967, however, indictment No. 8934 was filed. The appellant was arraigned thereon and a plea of not guilty entered “by this country.” He made no demand for a speedy trial thereon, but moved to dismiss the indictment on 14 November and appealed from the order thereon of the lower court of 6 March 1968. So, with respect to denial of a speedy trial, error by the lower court in denying the motion to dismiss No. 8934 depends upon whether he was denied a speedy trial of No. 7851.

If he was denied a speedy trial of that indictment, it would bar further prosecution. We said in Brown v. State, 2 Md. App. 388, 398, “[W]e think it obvious that if prosecution of an offense is barred because an accused was not afforded his constitutional rights, he thereafter cannot be tried for that offense, and the return of another indictment could not overcome the prior violation of his constitutional rights.” But if he was not denied a speedy trial under No. 7851, there was no denial of such right under the subsequent indictments, for it is established that the right may be waived by failure to demand it or by the conduct of