161 A. 284 | Md. | 1932
The appellant, convicted of murder in the first degree and sentenced to death, brings before this court for review rulings of the trial court on challenges on his behalf to the array of petit jurors. There is no question of any error, or any lack of fairness, in the proceedings in the trial by the jury ultimately sworn. Six of the members of that jury were selected from the panel regularly in attendance for the court term, and six from extra talesmen summoned from the courtroom. The questions submitted to this court are two: Whether a departure from the method specified by statute for placing names of taxpayers and voters before the court as a basis of selection of the panel of jurors for the term rendered the make-up of that panel illegal, and whether, in violation of the provisions of the Fourteenth Amendment of the Constitution of the United States, negroes were excluded from those summoned for the panel, and from those summoned from the courtroom. The appellant is a negro. See the previous appeal in the case, Lee v. State,
The appeal has not been perfected in entire compliance with the rules governing appeals to this court, and there has been filed a motion to dismiss it because a form of bill of exceptions to present the rulings sought to be reviewed was not presented and signed, as required by the rule of the trial court, during the pending term of court. The term in this instance, the December term of the court, expired on March 7th, 1932, and the bill of exceptions was presented for signature on April 18th, 1932, six weeks after the close of the term. The attorneys for the State refused to approve the form, and the court declined to sign it as a bill of exceptions because of lack of power to do so then, but did certify *59 that the bill correctly reported the transactions which attended the selection of the jury.
A bill of exceptions seems not to be required, and therefore the failure to present the form prepared, within the time fixed for presenting bills of exceptions, does not afford ground for dismissing the appeal. As a bill of exceptions, the paper could not be considered because of the delay, but a bill of exceptions is not the only method of bringing before this court testimony and facts appearing in summary proceedings, as upon various motions. Fick v. Towers,
Reference was made in the oral argument to the requirement of Rule 25 of this court that on appeals in criminal cases the records shall be transmitted forthwith after the appeals are taken; but the decisions in the cases of Luray v. State,
When the case was called for trial, and on the day of the trial, the challenge to the array of the petit jurors on the *61
panel in attendance was filed, in writing, on the defendant's behalf, and answered in writing on behalf of the State. First, it was objected that, whereas the provisions of the local law governing the make-up of a petit jury panel required that the names should be selected from a special list of taxable inhabitants furnished by the clerk of the county commissioners and a special poll list prepared by the clerk of the supervisors of elections, there had been, in fact, no such lists prepared, and the names had been, according to custom in that jurisdiction, first selected by one of the judges from his contacts and information, as those of desirable residents of the county, and then compared with both the general tax books and the poll list of the supervisors. The law required that men should be selected with reference to their intelligence, sobriety, and integrity, and therefore choice of men from contacts or reliable information was necessary at one stage in the process. Acts of 1929, ch. 339, amended by Acts of 1931, ch. 25. The objection seems to be, then, in part to the lack of lists specially prepared for the use of the judges, and in part to a reversal of the order outlined in the statute by selection of eligible men before the scanning of the poll list and the tax books, instead of scanning the lists first, and then making the choice from among the names on them. It seems to the court that the difference is not a material one, so far as compliance with the state law is concerned, and involves no substantial likelihood of unfairness, and should not be held to vitiate the trial in this instance, unless the statutes command it. And it was decided in the earlier case ofHollars v. State,
The objection to the selection of talesmen from the courtroom, on the ground of discrimination against negroes, is not supported sufficiently by the evidence, and requires little comment. In securing talesmen under the direction of the court, in pursuance of section 15 of article 51 of the Code, the sheriff selected only white men, although it appears that *62 there were a few colored men in the room. The court, in ordering one of the earlier additions of talesmen from the room, instructed the sheriff neither to summon, nor to refrain from summoning, any citizen or person eligible, because of his color; and the sheriff, sworn as a witness, testified that he did not refrain from summoning any such person. We could not find from the proceedings as reported that he did. Therefore, if there was any improper exclusion of negroes, it could have been only in the selection of the persons called for the regular panel for the term, from which six of the petit jury were secured. That was done according to long-established custom in Baltimore County. At the request of counsel for the prisoner, Judge Duncan, from the bench, explained the method.
Judge Duncan had done the work of drawing juries for the court throughout the preceding twenty-six years. He had the poll list and the tax books of the county in each instance, but he first procured the names of good men from suggestions from his outside contacts. "A witness," he said "may impress me on the stand favorably; I may meet some one at some social gathering or some church gathering; I make a memorandum of him. I go to the tax books and the registered voters list to see if he is there, and the next step is to inquire, from people in the community in which he lives, whether he is a good man, whether he pays his debts, is honest, sober, and if he is thought well of in his community. These are the only qualifications I am looking for, and that is the way the jury is selected." The poll list would show whether a given name is that of a white man or a negro. In all the years in which these selections had been made the judge had never selected a negro for jury service, and, asked whether he had excluded negroes from consideration, said he did not consider them at all, that he did not exclude them from consideration, but did not consider them at all. He thinks it quite likely that he has made selections of thousands of men. In explanation of his statement that he had not considered negroes at all for jury service, Judge Duncan added that he meant that he did not consider negroes any *63 more than he considered any other race or sect; he selected the men who were good men in his judgment and who were all vouched for. And further he explained that in the selection of a juror, or a jury, he proceeded about on the same line as the President of the United States proceeds on when he selects a cabinet. The President wants to get men in the cabinet who are competent for the purpose for which they are selected, and then he wants a harmonious body, and that is what Judge Duncan does in the selection of jurors. And asked specifically whether he discriminated against negroes as such, or in favor of other races as such, Judge Duncan answered, "Absolutely not." That there are respectable, law-abiding, property owning, negroes whose names appear either on the taxable list or the poll books of the county is undisputed. And to a question how it happened that negroes otherwise respectable and possessing qualifications for jury service and selection for jury service had never in all the years that he had made selections for juries been chosen by him for jury service, Judge Duncan answered: "Probably the best answer I can give you is that there is nothing in the Constitution or the law of this State that says that I must select negroes or that I must select Chinamen or any other race or nationality. I think I have been given discretion in the selection of jurors and I am working solely for the administration of justice in an orderly manner and I select a jury conscientiously to that end."
It was stated in argument, and apparently agreed, that the negro population of Baltimore County numbers 11,764 out of a total population of 124,565, or a little less than one in ten. But it should be remembered that these numbers do not present an accurate statement of the proportion of eligible negroes, because of differences in the economic and other conditions of the two races. There is a much larger proportion of the negroes than of the whites in the class of workers who could serve on juries only at the cost of a prohibitive sacrifice of earnings and employment.
In this, as in most of the other recent cases which have had to deal with this question, there is no ground for objection *64
to the laws governing the selection of jurors in Baltimore County. They do not authorize any discrimination merely on account of race or color. Discrimination is charged only in the practice, as explained by Judge Duncan, in pursuance of which half of the petit jurors sworn in the case were selected. The principles which control are derived from the decisions of the Supreme Court of the United States, and are thus summed up in the case of Carter v. Texas,
Whether there has been exclusion in a drawing is a question *66
of fact, the challenger bearing the burden of establishing the fact. Martin v. Texas,
The Supreme Court, in Neal v. Delaware,
The overruling of the challenge must be held erroneous, and the judgment must, for the error, be reversed, and a new trial ordered.
Judgment reversed, and a new trial awarded. *68