85 Md. 188 | Md. | 1897
delivered the opinion of the Court.
The traverser was indicted at the May term, 1896, of the Circuit Court for Queen Anne’s County for obtaining money under false- pretenses. The case was removed to the Circuit Court for Dorchester County, and in that Court eight pleas in abatement were filed — all of them being to the effect that the grand jury, which found the indictment was not legally constituted, as its members were not selected or drawn in compliance with the requirements of the statute. The testimony offered on behalf of the traverser does not materially differ from that of Judge Russum, who drew the jury, and was the only witness for the State. The Court below found for the traverser on the issues joined on all the pleas, and in reviewing its judgment we will first consider the evidence relating to the method adopted in the selection of the list of the one hundred and fifty names provided for by section 7 of Article 51 of the Code, and then that showing how the forty-eight jurors for the term were drawn.
1; Judge Russum testified that he had the list of male taxable inhabitants of Queen Anne’s County furnished by the clerk of the County Commissioners and the list of names of one hundred and fifty persons from which the late Judge Robinson had drawn the jury for the November term, 1895, of said Court, sent to him; with them, Lemuel Dunbracco, a deputy clerk of the Circuit Court for Queen Anne’s County, sent a list of names of one hundred and fifty persons ; that he compared the latter with one found in the letter box used by Judge Robinson in the consultation room of the Court of Appeals, headed “ Names of persons for May term, 1896, Queen Anne’s County,” which contained forty-eight names to supply the places of
The testimony offered by the traverser shows in addition that the list of one hundred and fifty names and the ballots used at the drawing were in Mr. Dunbracco’s handwriting, and that when Judge Russum went into the Clerk’s office Mr. Dunbracco at once went into the vault and brought' out a bundle which consisted of the list of names and the ballots which he gave the Judge.
It is contended on the part of the appellee that the names thus obtained were not selected by Judge Russum and therefore the case was directly within the ruling of this Court in
The question then comes to this, if Judge Robinson had lived and had used this list in drawing that jury would it have been legal ? The argument on the part of the appellee is that it would not have been, because the names were privately selected and the list was made up prior to the time the jury was drawn. If it was lawful to use the names not drawn out at the November term, what possible difference could it make to the traverser or to any one else whether they were written on a new list before or at the actual time of the drawing of the jury? If the Judge drawing the jury had the right to determine, as we have already said he had, that he would use all those names, unless at the time of the drawing some one present showed good cause why one or more should be omitted-, would it not be bringing the law
But it is said that it was held in the Avirett case that the list must not be privately and previously selected, but the names must be selected at the time of the drawing in the presence of such members of the bar and others as see proper to attend. It is true that the opinion does comment on those facts, but it was not intended to suggest that such private and previous selection of names would of itself invalidate the drawing of the jury. The list in that case was held to be invalid, because it had been previously made up of names of persons that the Judge knew, and “ from names that had been suggested to him by different persons in the different districts in the county ” and “ some of the names had been suggested by different members of the bar." That was the practice disapproved of by this Court, and the danger of such practice was emphasized by the
What we have said in reference to the list would apply also to the ballots being previously prepared, for they were taken from the list, and were either all folded by the Judge, as he recollects was done, or by him and a deputy clerk, in his presence. Whether the deputy assisted in this is wholly immaterial, as the statute does not require the ballots to be rolled or folded by the Judge himself, but does say that they should be placed in the box by the Judges with their own hands, which was done in this case.
2. The statute, however, does provide that neither the clerk nor deputy who was present at the writing, rolling or folding and depositing the ballots in the box shall be designated by the Judge as the one to draw the forty-eight names from the box. In this respect it was not strictly followed, as the evidence shows that Mr. Dunbracco did write the ballots, and, according to the evidence of some of the witnesses, did help to fold them, although he was sent out of the room when they were placed in the box. But that was a mere irregularity, and not such as could invalidate the drawing. The testimony is that the Judge, after placing the ballots in the box closed it, shook it well and stirred up the ballots out of the presence of Mr. Dunbracco and then called him in the room. The latter then drew out of the box, one by one, forty-eight of the ballots, and gave each one, as it was drawn, to the Judge, who read aloud the names. There is no suggestion that there was anything wrong attempted by the deputy, or that he could have, in any way, drawn any particular ballot or ballots to the exclusion of others. One of the gentlemen, who is now counsel for the traverser, was present, and was. a witness in reference to the drawing, but there is no intimation by him or any of the other witnesses of any actual wrongdoing or of anything that had the appearance of it. Now, whilst it is important that the spirit of the statute, and the letter of it too, as far as reasonably possible, be followed and obeyed,
For the reasons we have given we think there was error n sustaining the pleas in abatement and quashing the indictment in this case.
The judgment must, therefore, be reversed and the cause remanded in order that the travex'ser may be tried upon the indictment against hirn.
Judgment reversed and cause remanded.