Murray v. State

Lowe, J., delivered the opinion of the Court. While confined at Patuxent Institute Roosevelt E. Murray assaulted a female employee, a fact he later admitted at trial. The information charged that the incident occurred April 28, 1973; however, an information charging assault and battery was not filed until May 3, 1974. Trial was held six months later on November 6, 1974.

His appeal from a conviction by a jury of the Circuit Court for Howard County, presided over by Judge James Macgill, questions nothing of substance in the trial at which he was convicted of assault. His complaints rest upon denial of two preliminary motions and the absence of procedural advice from the judge of his right to testify or to decline to do so. Since we will reverse on the question of limitations we need not discuss the other two questions which were without merit in any event. Penitentiary Offense The issue with which we find ourselves in accord is appellant’s contention that the statute of limitations ran out five days before he was charged with assault, whether measured in terms of Md. Code, Art. 57, Sec. 11: “No prosecution or suit shall be commenced for any fine, penalty or forfeiture, or any misdemeanor, except those punished by confinement in the penitentiary, unless within one year from the time of the offense committed; except that prosecutions for violations of Secs. 110 and 111 of Article 66V2 of the Code, as amended from time ⁴⁰⁶ to time, may be brought within two years from the time the offense is committed.” [Emphasis added], or its revised version now in Cts.

Art. 5-106: “(a) One year. — Except as provided by this section, a prosecution for a misdemeanor not made punishable by confinement in the penitentiary by statute shall be instituted within one year after the offense was committed.” Honed to a fine edge, appellant’s argument is that assault does not fall under the exception because it is a common law crime for which there is no statutory provision for punishment in the penitentiary. He claims that “because there is no statutory provision explicitly setting the punishment for those convicted of assault and/or battery, they are both non-penitentiary misdemeanors, and as such, are subject to the one (1) year statute ...” citing Archer v. State, 145 Md. 128 and State v. Michael, 2 Md. App. 750. The State contends that the exception to the Sec. 11 one year limitations period applies to any misdemeanor the punishment for which may be confinement in the penitentiary. In order to invoke the exception, it is sufficient in the State’s view that confinement in the penitentiary be among the penal alternatives for the offense charged.

It reminds us that in Davis v. State, 18 Md. App. 378 , 383 we said: “Code (1957) Art. 57, Sec. 11 provides a statute of limitations of one (1) year for all misdemeanors except those punishable by confinement in the penitentiary.” [Emphasis added]. And in Duvall v. State, 5 Md. App. 484, 488 we wrote: “More specifically there is authority holding that Section 11 of Article 57 which limits prosecutions for misdemeanors ‘except those punished by ⁴⁰⁷ confinement in the penitentiary’ to one year is properly interpreted by viewing the word ‘punished’ to mean ‘punishable’ by confinement in the penitentiary. See Schaumloeffel v. State, 102 Md. 470 . Accordingly, while the crime of escape need not be punished by confinement in the penitentiary (incarceration in jail or the House of Correction also being authorized), it is in any event punishable by confinement in the penitentiary, and therefore not barred from prosecution after one year under the statute.” The State has mistakenly extended the language in this Davis dictum beyond its factual context and constructed a semantic strawman thereby.

The holding in Duvall was confined to statutory punishments for misdemeanors where the statute prescribed penitentiary confinement as one alternative among others available to the sentencing judge. In l^iat context, we held that it did not matter that, under the terms of the statute, the defendant might not actually be sentenced to confinement in the penitentiary, as long as the statute made some express provision for the penitentiary alternative. If the statute so provided, it made the defendant “punishable” by penitentiary confinement and the statute of limitations did not apply. The Court of Appeals spoke on the precise question in Archer, 145 Md. at 136-138 .

It dealt with the effect of a statute upon Art. 57, Sec. 11 and consequently had to pass the threshold question we now face, i.e., whether a common law misdemeanor for which sentence might be directed to be served at the penitentiary falls under the penitentiary exception to Sec. 11. The Court said “Common law misdemeanors are not ‘punished by confinement in the penitentiary’ in the sense of