Duncan v. State

Murphy, C. J.

concurring in the judgment:

I concur in the judgment reversing the conviction but not for the reason stated by the Court.

The indictment charged that Duncan, a police officer, while acting under color of his office, impeded and obstructed justice by retaining possession of goods with knowledge that they had been unlawfully obtained by Mally. The Court of Special Appeals held that there was legally sufficient evidence to convict Duncan of misconduct in office on the premise that the indictment charged him with concealing knowledge of Mally’s criminal activities in violation of his official duty to disclose it. It said that the offense was a continuing one up to November, 1975, and, therefore, not barred by limitations because the last illegal transaction between Duncan and Mally, for which Mally could be prosecuted, was within a year of the date of the indictment.

In reversing the Court of Special Appeals the majority holds, and I agree, that the indictment cannot properly be read to charge Duncan with nonfeasance for failing to institute prosecution of Mally for his illegal acts. The majority instead holds that the indictment was one charging malfeasance, i.e., the retention of goods by Duncan with knowledge that they were unlawfully obtained by Mally; it concludes that the offense charged was barred by the one year statute of limitations applicable to non-penitentiary misdemeanors because the last transaction between Mally and Duncan occurred more than one year after the indictment against Duncan was returned.

In my judgment, it is unnecessary for the Court, in reversing the conviction, to determine whether limitations *396barred prosecution in this case. It is crystal clear and totally dispositive of this case that there was no evidence to support the essential averment of the indictment, namely, that Duncan’s wrongful act in retaining possession of the unlawfully obtained goods was under color of his office. While there was evidence showing that Duncan obtained the goods under color of office, he was not charged with misconduct in office on that account. Because there was no evidence to show, as alleged in the indictment, that Duncan’s retention of the goods was under color of office, I would conclude the case on that ground and not reach the question of limitations.

It is true, as the Court states, that limitations ordinarily begin to run as soon as the crime of misconduct in office is completed. The Court says that the crime, in this case, was completed in December, 1974, when Duncan last received goods from Mally knowing that they had been unlawfully obtained. It says that Duncan’s retention of the goods was merely a continuance of the result, and not a continuous course of criminal conduct. I am badly troubled by this expansive application of the statute of limitations to the crime of misconduct in office where, as here, Duncan’s wrongful possession of the unlawfully obtained goods continued secretly until a few months prior to the return of the indictment. A police officer holds a particularly sensitive position of public trust. Public confidence in. the administration of justice would be badly eroded — indeed shaken to its teeth — if we were to treat the crime of misconduct in office, where it involves the wrongful obtention and retention of goods by a police officer under color of office, as if it were no different than any offense committed by a common thief or receiver.