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 ...