Opinion
No. 348, September Term, 1969.
Decided March 9, 1970.
INDICTMENT — Indictment Invalid On Its Face Cannot Be Saved By Offer Of Testimony To Support Allegations Not Contained Therein. An indictment, or count thereof, which is invalid on its face cannot be saved by the offer of testimony to support allegations not contained therein. p. 119
APPEAL — State's Appeal From Order Granting Motion To Dismiss Several Counts Of Indictment Held Premature. The Court of Special Appeals dismissed as premature an appeal by the State from an order of the trial court granting appellee's motion to dismiss three of the four counts charged against her in an indictment. p. 119
Appeal from the Circuit Court for Baltimore County (JENIFER, J.).
Janet Gilbert filed a motion to dismiss three of the four counts charged against her in an indictment and, from an order granting her motion, the State appeals.
Appeal dismissed.
The cause was argued before MURPHY, C.J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.
Robert A. DiCicco, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Samuel A. Green, Jr., State's Attorney for Baltimore County, and L. Robert Evans and Gary Huddles, Assistant State's Attorneys for Baltimore County, on the brief, for appellant.
Paul J. Feeley for appellee.
Janet Gilbert, the appellee, was indicted, jointly with one James Gilbert, on four counts of a ten count indictment. The State appeals from an order of the trial court granting a motion to dismiss three of the counts. She moves to dismiss the appeal and we grant the motion. State v. Gregg, 163 Md. 353, 163 A. 119 held an appeal premature where other counts in the indictment remained open after a motion to dismiss had been granted as to some of the counts. See also State v. Gibson, 4 Md. App. 236, 242 A.2d 575, note 6.
If we had considered the appeal on the merits we would have affirmed the action of the trial court for the reasons fully set out in State v. Michael, 2 Md. App. 750, 237 A.2d 782. An indictment, or count thereof, which is invalid on its face cannot be saved by the offer of testimony to support allegations not contained therein.
Appeal dismissed.
Costs to be paid by the County Council of Baltimore County.
Mandate to issue forthwith.