60 A. 273 | Md. | 1905
Duplicity in Criminal Pleading — Validity of Local Law Requiring Jurors to be Selected by Jury Commissioners — Mode of Selecting Jurors — Statute Requiring Jurors to be Able to Read and Write is Directory Only — Plea in Abatement to Indictment Alleging Illegality of Grand Jury.
A plea is bad for duplicity which alleges two or more distinct grounds of defense to one charge, when one of the defenses alone would be effectual, because such plea tends to make several issues in respect of a single charge. *623
At common law the proper mode of taking advantage of duplicity in pleading is by demurrer; and this rule is not changed by the language of Code, Art. 75, § 10.
A plea in abatement to an indictment alleged it to be invalid, first, because the grand jury which found the indictment did not consist of twenty-three lawful jurors; second, because the persons from whom the grand jury was drawn were not legally selected; third, because the statute under which the jury was drawn was unconstitutional. Held, upon demurrer, that this plea is bad for duplicity, because the proof of anyone of the matters pleaded would be sufficient to show that the grand jury was not a lawfully constituted body.
The selection of jurors is not an essentially judicial function, and the Act of 1904, ch. 560, which vested the power of selecting jurors in Prince George's County in the hands of Jury Commissioners appointed by the Governor, is not unconstitutional as conferring upon them the exercise of judicial power.
Under the law relating to jurors they may be selected either from names on the tax lists or from names upon the poll-books, and the officers drawing juries may request other persons to furnish the names of proper individuals from whom they make a selection. A plea in abatement to an indictment, upon the ground that the persons from whom the grand jury was drawn were not legally selected, alleged that the Jury Commissioners in selecting the list of names, under the Act of 1904, ch. 560, from which the grand jury was drawn, took the names in part from lists furnished them by persons in different districts of the county, and that the persons sworn on the grand jury were not qualified. Held, upon demurrer, that this plea is bad because it does not state affirmatively that the names furnished by other persons were voluntarily suggested by them without a request from the Jury Commissioners and were not approved by them after examination, and that the names of the jurors were not upon the tax-lists or poll-books.
The local Act of 1904, ch. 560, provides that the persons selected as jurors shall all be taxpayers and able to read and write the English language. Held, that the provision requiring the jurors to be able to read and write is directory only, and an indictment found by a grand jury one of whose members was unable to read and write is not for that reason invalid.
A plea in abatement to an indictment alleged that the grand jury finding it did not consist of twenty-three men as is required by law. Upon the list of the grand jurors appended to the plea and certified by the Clerk of Court, the word "Excused" followed the name of a person who had been sworn on the jury. Held, that since the plea does not disclose whether that juror had been excused before or after the indictment was found the plea is not a bar to the indictment. The appellee was indicted in the Circuit Court for Prince George's County for selling liquor on Sunday. To this indictment he filed a plea in abatement alleging "that the said indictment nor presentment were not made, nor found, by a legal or lawful grand inquest, or grand jury of the State of Maryland, in and for Prince George's County," for three distinct reasons stated in the plea; viz, first, because the grand jury did not consist of twenty-three lawful jurors; 2nd, because the two hundred persons from whom the grand jury was drawn were not legally selected; and 3rd, because ch. 560 of the Acts of 1904, under which the jury was drawn by Jury Commissioners appointed by the Governor, is unconstitutional.
To this plea the State filed a general demurrer, which was overruled, and no replication being filed, judgment was given against the State and the indictment was quashed, from which judgment this appeal was taken. The learned Attorney-General argued that this plea was bad for duplicity and as that objection if well founded, must prove fatal, it will be first considered. The authorities agree that all pleadings are double which contain several answers, whatever the class or quality of the answer, whether in abatement or in bar. Stephen on Pleading, p. 258;Gould on Pleading, ch. 8, sec. 1; 7 Enc. Pl. and Pr. 238. Mr. Bishop in his new Crim. Proc., vol. 1, sec. 432, states the rule thus: "Alike in criminal and civil proceedings, duplicity consists in alleging for one single purpose, or *625 object, two or more distinct grounds of complaint or defense when one alone would be effectual in law."
Mr. Stephen on p. 242, Tylers Edition, says that the meaning of this rule, with respect to the declaration (or indictment) is, "that it must not, in support of a single demand" (or charge), "allege several distinct matters by anyone of which that demand (or charge) is sufficiently supported; and, with respect to the subsequent pleadings, the meaning is, that none of them is to contain several distinct answers to that which preceded it, and the reason of the rule in each case is, that such pleading tends to several issues in respect of a single claim." And again on pp. 245 and 246, he says that although a plea may make distinct answers to such parts of a declaration as relate to different matters of claim or complaint, "that none of the matters so alleged in a plea in abatement must be such as would alone be a sufficient answer to the whole;" and he gives the following illustration. The defendant pleaded in disability of the person of the plaintiff, ten different outlawries adjudged against him, and it was held that the plea was ill for duplicity, because the plaintiff was disabled as well by one outlawry as by the whole ten." So here, the grand jury would be as effectually shown to be an unlawfully constituted body, by proof of anyone of the matters pleaded, as of all, assuming all of these matters to be valid objections to its organization. For this reason we think this plea is bad for duplicity. At common law it would seem to be clear that demurrer is a proper mode of taking advantage of this defect. 1 Bishops New Crim. Proc., sec. 442. Mr. Poe in sec. 738 of his work on pleading calls attention to the fact that the Act of 1888 omitted from sec. 10 of Art. 75 the words, "and that no one plea contain distinct matters of defence or reply," which were previously contained therein, and adds that since that Act duplicity is no longer the subject of demurrer in this State. But in Stearns v. The State,
The questions sought to be raised by this plea, however, are important in themselves, and as affecting the administration of the criminal law in Prince George's County, and we will therefore proceed to state our views in respect to them. The objections made our three in number: First, that the grand jury did not consist of twenty-three lawful jurors. Second, that the two hundred persons from whom they were drawn were not legally selected. Third, that the law requiring the jury to be drawn by Jury Commissioners appointed by the Governor is unconstitutional. These will be considered in their inverse order.
1st. At common law, jurors were selected by the Sheriff in his discretion. Bacons Abridgement, Juries B.B.; 12 Enc. Pl. andPr., 273. Thompson and Merriam on Juries, sec. 44. In this State the Sheriff always made the selection of the panel after the common law method, until the Act of 1867, ch. 329. Cooper
v. State,
We cannot perceive any ground upon which the Act of 1904 can be declared to be unconstitutional and void.
2nd. The plea states that "the Jury Commissioners did not select the list of 200 persons in whole as provided by sec. 177A of Art. 17 of the Local Code as amended by the Act of 1904, ch. 560, but that the said list of 200 persons so certified to the Court, from which the list of 48 names was afterwards to be drawn, was selected in part from lists furnished the said Jury Commissioners from persons in the several election districts of said county, contrary to law, and that by reason of such unlawful action on the part of said Jury Commissioners, the said list of 48 names, from which said grand jury was drawn, was, in part, made up of incompetent and disqualified persons as jurors; and that certain of such persons, so suggested as jurors, to said Jury Commissioners, and by them so selected as jurors, were chosen on said grand jury, at the first day of the Court, and that thereby the said grand jury, as empannelled and sworn on the said first day of Court was not made up of qualified and competent persons legally qualified as grand jurors." *628
This plea does not show what lists are referred to as furnished by persons in the several election districts. There is nothing to show that the names were not upon the tax lists or poll-books, or upon both; and in Downs v. the State,
There is nothing in this plea to show that these names were not furnished to the Jury Commissioners at their request, and if so furnished this does not offend against the law. In Avirett'scase,
Moreover this plea is lacking in certainty. In Bishop's NewCrim. Proc., sec. 327, the author speaking of pleas in abatement, says, "This superlative certainty requires the utmost fullness and particularity of statement, as well as the highest attainable accuracy and precision, leaving on the one hand nothing to be supplied by intendment or construction, and on the other, no supposable special answer not obviated. And in State
v. Scarborough,
3rd. The last objection is that the grand jury did not consist of twenty-three lawful jurors. In Vincents case,
The demurrer to this plea must be taken as admitting that Cox was one of the twenty-three men empannelled, that he could neither read nor write the English language, that he was excused by the Court, and that his place was not filled, all these being facts well pleaded; but it does not admit, that he was not competent as a juror nor that the indictment was not found by a legally competent and qualified grand jury, these being conclusions of law for the Court. Upon the list of grand jurors appended to the plea and certified by the clerk of the Court, the word "excused" follows the name of Cox, but there is nothing in this appendix, or in the plea itself, to show on what day, or at what hour in the day he was excused. So that the question is whether there were twenty-three qualified grand jurors empannelled and sworn when the jury was organized, for if there were, then the subsequent excusing of Cox could not invalidate the grand jury; and the determination of this question depends upon whether the provision that each juror must be able to read and write the English language is mandatory or directory. The appellee contends that the Vincent case is conclusive of this case, because it was there said that a grand jury can only be legally organized by empannelling twenty-three qualified men. But in that case the only question was as to the number required to organize a valid grand jury, while here, the only question is as to the qualification of one of the twenty-three, and the disqualification must be decided without referring to anything decided or said in the Vincent case,
In Green's case,
In Vincent's case it required only care and attention on the part of the Court and the clerk to ensure the empannelling of the full number of twenty-three jurors, and if twenty-two were held sufficient, it could follow that any number not less than thirteen must equally be so held. It cannot be supposed that the Legislature intended to permit the Court thus to nullify its requirement, or to sanction the consequences which we have mentioned.
In Green's case (supra), on the other hand, it was held that *633
the duty imposed upon the Judge in respect to the selection of persons from the box over twenty-five and under seventy is directory only; and the Court said: "The statute provides no method of ascertainment. It would be impossible for the Judge to know with certainty whether all the persons he selects from the box are under seventy and over twenty-five. Ascertainment, at the time of drawing or selecting is impracticable, and is not provided for." So also in Johns v. Hodges,
The difficulty of ascertaining with certainty whether persons on the lists can read and write is far greater than the difficulties in the cases cited, and no means are provided for such ascertainment. The poll-books are presumed to be signed by the voter who can read and write, but this is often neglected and not infrequently men can sign their names when they can write nothing else, and cannot read at all, while the tax-lists disclose nothing in this respect. The consequence of holding this provision to be mandatory would be far-reaching and most disturbing. The probable frequency of mistakes in this respect would jeopardize the validity of indictments, and the affirmance of this judgment would offer strong inducements for collusion between criminals and the venal jurors who in spite of every precaution are sometimes empanneled.
It was undoubtedly such considerations as those to which we have adverted which caused the United States Circuit Court for the Southern District of Ohio to hold in the U.S. v. Ambrose, 3 Fed. Rep. 283, that where a grand jury was drawn *634 under the Act of Congress of 1879, and the name of one of the jurors who assisted in finding the indictment was not put into the box, nor drawn from it, by any competent authority, and there was no imputation that such name appeared in the venire through bad faith, this was an irregularity only which would not vitiate the action of the grand jury.
For the reasons we have given the judgment will be reversed and the cause be remanded that the traverser may be tried upon the indictment.
Judgment reversed and cause remanded.
(Decided March 22d 1905.)