Appeal from the Criminal Court of Baltimore; Moorman, J.
Murphy, C.J., and Orth and Thompson, JJ. Murphy, C.J., delivered the opinion of the Court.
Appellee Hunter was indicted for storehousebreaking, larceny, and allied offenses on May 7, 1969. The case was scheduled for trial on July 17, 1969. Under circumstances hereinafter related, Judge Walter H. Moorman, sitting in the Criminal Court of Baltimore, dismissed the indictments for "lack of prosecution" and the State appealed.
As no stenographic record of the proceedings was made, we directed that Judge Moorman "certify the true circumstances and events under which the indictments were called to trial by him and dismissed for failure of prosecution."*fn1 Pursuant to this directive, Judge Moorman certified that on July 17, 1969, he was assigned to Part V of the Criminal Court of Baltimore; that he convened the court at 10:15 a.m. but no case on the docket was ready for trial that day; that thereafter, he was informed that appellee's case, involving two indictments, was to be transferred to his court from Part VI of the Criminal Court of Baltimore; that he conferred in chambers with the prosecutor concerning appellee's case and was told that the State was not then ready for trial because three of its police witnesses had not as yet reported. Judge Moorman further certified that the prosecutor advised him that he had conversed by phone with one of the police officers and was told "that he might possibly be able to appear about noon or the afternoon," although it was indefinite whether this officer would appear at all that day. Continuing his certification, the judge stated that the prosecutor told him that the police officers had been summoned; that in view of their failure to appear, he returned to the Bench for the purpose of issuing bench warrants to compel their appearance; but that upon making further inquiry, and from a review of the records, he determined that no summons had been issued for the police witnesses. The judge concluded his certification by stating:
"* * * Although other witnesses were present,
the Assistant State's Attorney did not elect to proceed with the trial. At this time, it was about noon. Thereupon, I dismissed the indictments for lack of prosecution."*fn2
It is clearly to be gleaned from the substance of the certification that appellee's case was transferred to Judge Moorman's court for trial sometime between 10:15 a.m. and noon, and that the judge's action in dismissing the indictments immediately followed his discovery that the missing State's witnesses not only had not been summoned, as he was originally told by the prosecutor, but the appearance of at least one of them in court that day was, at best, uncertain. It further appears from the certification that while other witnesses "were present," the prosecutor "did not elect to proceed with the trial," and thereupon the indictments were dismissed for "lack of prosecution." Whether the trial judge actually called the case for trial, or whether the prosecutor made an affirmative election not to proceed to trial in the face of the court's demand that he then do so, cannot be ascertained from the judge's certification. It is clear, however, that the indictments were not dismissed on the ground that Hunter had been denied his constitutional right to a speedy trial; indeed, no motion for a speedy trial was ever filed, and only a few months had elapsed between indictment and scheduling the case for trial. It is equally clear that the dismissal of the indictments could in no event be based on any power of the court to enter a nolle
prosequi to the indictments on its own motion, it being well settled that in the absence of a statute or governing rule of court, the power to enter a nolle prosequi to a valid indictment lies within the exclusive province and discretion of the State's Attorney.*fn3 See Greathouse v. State, 5 Md. App. 675; People v. Sidener, 375 P. 2d 641 (Calif.); State v. Stevens, 381 P. 2d 100 (Ariz.); Malley v. State, 69 S.W.2d 765 (Texas); Annotation, 69 A.L.R. 240 (Power of court to enter nolle prosequi or dismiss prosecution) and cases there collected, particularly State v. Anderson, 26 S.W.2d 174 (Tex.); 21 Am.Jur.2d Criminal Law, Section 517. Nor does a trial judge possess power under the present state of Maryland law, either inherently or by statute or rule of court, to summarily dismiss a valid indictment prior to trial over the State's Attorney's objection upon the ground that there has been a "lack of prosecution" not amounting to the denial of the constitutional right to a speedy trial. ** That trial judges under the federal practice would appear to be vested with such authority, as appellee points out, is because Rule 48 of the Federal Rules of Criminal Procedure expressly provides that the court may dismiss an indictment for "unnecessary delay in bringing a defendant to trial" -- phraseology broader in scope and more encompassing than that underlying the constitutional right to a speedy trial. See Mann v. United States, 304 F. 2d 394 (App. D. C.); United States v. Pack, 247 F. 2d 168 (3rd Cir.). But, as indicated, unlike the federal practice, or the practice in some jurisdictions permitting courts, by statute, to dismiss indictments "in furtherance of justice," (see State v. Gile, 172 P. 2d 583 (Mont.), and People v. Winter, 342 P. 2d 538 (Calif.)) the law of Maryland, while recognizing the denial of the constitutional right to a speedy trial as a valid ground for the court's dismissal of an indictment, does not countenance such a dismissal
upon the court's own motion for mere "unnecessary delay" or "in furtherance of justice." See Barnett v. State, 8 Md. App. 35.
On the scant record before us, we hold that the dismissal of the indictments was an action beyond the power of the court. To so conclude is not to deny trial judges power and authority to control the course of criminal prosecutions in their courts. State's Attorneys, like other attorneys, are officers of the court and subject to its contempt powers where their conduct is deserving of such condemnation.*fn4 In any event, to dismiss a valid indictment of a grand jury prior to trial as a means to evidence the court's dissatisfaction with the prosecutor's pretrial ...