47 A. 1036 | Md. | 1900
The appellee was indicted in the Circuit Court for Prince George's County for the crime of perjury before the same grand jury by which the indictment was found. Upon arraignment he pleaded not guilty, but subsequently, and presumably with the leave of the Court, withdrew this plea, and filed a general demurrer to the indictment, and the Court sustained the demurrer and quashed the indictment, from which action this appeal is taken. The chief and the only substantial question presented, is whether it does not appear upon the face of the indictment, and from its express averments, that the grand jury was so selected, drawn and constituted, as to be incompetent to find a valid indictment.
Ordinarily there is a presumption of law that the grand jury was legally and regularly selected, drawn and empanelled, according to law, and that its proceedings at the time the indictment was found were in every respect legal and regular.State v. Scarborough,
1st. That the grand jury was selected and chosen on the first day of the term, when the law provides that it shall be selected and drawn not less than fifteen days before the term; and,
2nd. That it was composed of only twenty-two grand jurors, when the law prescribes twenty-three as the requisite number. We shall transcribe here so much of the indictment as it will be necessary to consider in determining this appeal.
"The grand jurors of the State of Maryland for the body of Prince George's County, do on their oath present, that heretofore, to wit, at a term of the Circuit Court for said County * * * begun on the first Monday of April, being the second day thereof in the year nineteen hundred, there was present the Hon. George C. Merrick, one of the Associate Judges of the Seventh Judicial Circuit of said State, embracing said county, * * * * * * and *723 at the same term of said Circuit Court, to wit, on the secondday of April in said year, there was duly selected and chosen George W. Wilson as foreman, and twenty-one other good and lawful men, to wit, William Berry, E.L. Houseman, Daniel McBarron, Joseph W. Clarke, William Binger, John B. Dale, Columbus C. Chew, George Gude, James T. Grimes, Samuel Dugan, J.M.T. Martin, Edward W. Perrie, Thomas H. Lyons, E.M. Hurley, Peter P. Tighe, Otho S. Pumphrey, J. Henry Murray, Nathaniel E. Hungerford, Edward H. Butler, John F. Dent and Benjamin H.C. Bowie, who, together with the said foreman, constituted and composed the grand inquest of the State of Maryland for the body of said county, commonly called the grand jury, for the April term of said year, who were then and there, in due form of law, sworn and charged to inquire, c."
Where there is nothing apparent upon the face of the indictment to repel the presumption that the grand jury was regularly and legally selected, drawn and empanelled, the question should be raised by plea in abatement before pleading to the merits, but where the indictment itself discloses an alleged fatal defect in this regard, the objection may be properly taken by demurrer.
Under the laws of Wisconsin, a grand jury constituted of a less number than sixteen is insufficient to find a good bill, and inFitzgerald v. State,
"STATE OF WISCONSIN,
La Fayette County, to wit:
"The grand jurors of the State of Wisconsin, to wit, twelve good and lawful men duly elected, drawn, empanelled and sworn to inquire, c."
The Court said the part laid under the videlicet might have been omitted and the indictment still have been good, "because then the legal presumption would have been that the jury was legally constituted; but here the case is different, the number being stated under a videlicet," and it was held that what was laid under the videlicet could not *724 be rejected as surplusage, and that the indictment would not support a verdict and conviction. We think the words "was duly selected and chosen" though grammatically inaccurate, embrace as well the other jurors named, as the foreman and reasonably import that all were selected and chosen on the first day of the term, instead of fifteen days prior thereto, and that the grand jury was constituted of twenty-two, instead of twenty-three good and lawful men, and that therefore the demurrer raises in the proper manner and at the proper time, both objections made as to the legal selection and constitution of the grand jury.
Section 7 of Art. 51 of the Code of Public General Laws, which is applicable to Prince George's County, provides that it shall be the duty of the Judges of the Circuit Courts for each of the counties, not less than fifteen days before the commencement of each jury term, after notice given to the bar, of the time and place of meeting, to select from certain prescribed sources, a panel to consist of a certain number of names for each county. Sections 8 and 10 of the same article, as they appear in Poe's Supplement to the Public General Laws of Maryland, are not in force in Prince George's County except as to one wholly immaterial matter the other matters dealt with in those sections being regulated in that county by sec. 178 of Art. 17 of its Public Local Laws, and by sec. 179 of the same article as amended and re-enacted by Chapter 483 of the Acts of Assembly of the year 1898. The only material difference between sec. 8 of the Public General Law, and sec. 178 of the Public Local Law, being that under the former, 48 jurors are drawn — while under the latter 73 are drawn; but the differences between sec. 10 of the Public General Law and sec. 179 of the Public Local Law, are numerous and important.
Under section 10 of the General Law, the Court, at the beginning of the term for which the 48 jurors were drawn and summoned, selects and appoints one as foreman of the grand jury. The remaining 47 names are then placed in a *725 box and are drawn out, one by one, the first twenty-two names drawn, together with the foreman previously appointed, constituting the grand jury, and the remaining 25 names the petit jury, for that term. If, for any reason, any one so drawn as a grand juror is not present at the conclusion of the drawing, or is disqualified or excused for cause, the Court is required to fill such vacancy or vacancies from the remaining 25 names of those who are present in the order in which they were drawn, and may thereupon in its discretion fill the vacancies so made in the petit jury, by drawing the necessary number of additional names as provided in section 8, or may direct talesmen to be summoned as provided in section 9.
It will thus be seen that under the General Law, after selecting and drawing the 48 names, not less than 15 days before the commencement of the term and the issuing of the venire, nothing more is authorized to be done until the commencement of the term, except that authority is given to draw other names to supply the place of those of the 48, who are returned by the sheriff prior to the commencement of the term, as dead, sick, or otherwise unable to attend, or absent and therefore not found. There is, and can be, no designation of the grand jury until the commencement of the term.
Section 179 of the Local Law of Prince George's County provides that of the seventy-three jurors directed by the General Law to be drawn fifteen days before the term, the twenty-three names first occurring in the order in which they were drawn, shall "constitute and be the grand jury for the ensuing term," and that the remaining 50 names next in the order of drawing, shall constitute and be the petit jury; and provision is made for dividing the petit jury into two panels, and for regulating the alternate attendance of these two panels. The section further requires that "the persons constituting the grand jury shall attend at the first day of the term," and that "the clerk shall publish a list of jurors in the newspapers published in said county for *726 two successive weeks before the commencement of each jury term of Court." No express authority is given for the appointment of a foreman of the grand jury, this being doubtless regarded as within the inherent power of the Court. Section 10 of the Public General Law, as amended by chapter 153 of 1892, extends the operation of that section to Prince George's County, so far, and so far only, as to authorize the appointment of a substitute foreman, in event of the death, disability or absence of the regular foreman.
We have deemed it proper to set forth at length the provisions both of the General and Local Law in reference to the selection, drawing and organizing of grand juries, in order that there may be no misapprehension as to the scope and effect of the decision in this case.
We do not think it necessary to determine the first objection raised here, viz., that the provision that the jury must be drawn fifteen days before the commencement of the term, is a mandatory provision, the neglect of which invalidates the drawing. InState, ex rel. Webster, v. County Commissioners of BaltimoreCounty,
The second objection made is distinctly raised upon the record and we think is fatal to the validity of the indictment. The same question was sought to be raised in State v. Scarborough,supra, by plea in abatement, and the Circuit Court for Harford County sustained the plea and quashed the indictment; but on writ of error this Court held the plea bad, because it might be true as alleged in the language of that plea, that the grand jury consisted of only 22 members at the time the indictment was found, and yet be a legally constituted and a competent jury, even though it were conceded that the panel would be illegally constituted and incompetent to act, if it had not originally consisted of 23 jurors, a question in regard to which the Court there declined to intimate an opinion.
Upon that question there is much diversity of opinion in the adjudged cases, which may be conveniently divided into three classes: 1st. Those which hold that a Court has no authority to try a person upon an indictment found by a grand jury composed of fewer members than the minimum number required by statute, and that objection upon this ground may be raised at any time, and in any manner, and cannot be waived by any act, or failure to act, on the part of the defendant; 2nd. Those which hold that the objection is waived by failure to take advantage of the defect before pleading to the merits; and 3rd. Those which hold that statutes fixing the number to compose a grand jury, are directory *728 merely, and do not alter the common law rule by which any number between 13 and 23 constitute a competent jury.
It is settled in this State that an objection of this character does not go to the jurisdiction, but is waived by pleading to the merits, and can not avail on motion in arrest of judgment.Green v. State,
In Clare v. The State,
In Green v. The State, supra, this Court said: "The general method prescribed for drawing juries is mandatory, and substantial compliance with the provisions thereof, in respect to the selection and drawing of jurors is necessary in order to make the jury a legal one; otherwise, the statutory provisions would be wholly nugatory." Surely, the number of jurors directed to be drawn for a grand jury, is a material part of the prescribed method of drawing, and the selection and drawing of 22 jurors only, can scarcely be regarded as a substantial compliance with the direction to select and draw 23 jurors to constitute a grand jury.
In Avirett's case
In Keating v. State,
In Doyle v. State, 17 Ohio, 222, where the statute required 15 qualified persons to compose a grand jury, and one of the fifteen drawn had not the requisite qualification as to residence, it was held that an indictment found by such jury was void. The Court said: "Fourteen are not a grand jury. The fact that twelve of the grand jury may find a bill is no answer to the objection. That does not prove that a less number than fifteen qualified persons can compose a grand jury." In McQuillen v.State, 8 Smedes Marshall, 597, it is said: "These restrictions are guards thrown around the liberty of the citizen.They constitute an important part of the right of trial byjury. A grand jury does not by our law, consist of thirteen or more men congregated by accident, or by the mere order of Court, in a jury box, but it consists of the requisite number of competent individuals, selected, summoned and sworn according to the forms of law, and if the law be not followed it is an incompetent grand jury." These two cases are cited by the Court with approval in Clare's case, supra, and to them may be addedState v. Gladden, 13 Florida, 623, and Findley v. State,
Opposed to the cases we have cited above are the Courts of Tennessee, North Carolina and Massachusetts, and perhaps some others may be added to these. In Pybos v. State, *731 3 Humphreys (Tenn.) 49, a statute, which provided the manner in which a grand jury should be organized, declared "the first eighteen drawn shall be a grand jury." The Court held the Act directory as to the number, and that "its object was to limit the number to be sworn, but that it did not at all alter the law that constituted a jury of twelve men." The same was held inCommonwealth v. Wood, 2 Cush. 149, CHIEF JUSTICE SHAW saying that the revised statutes which direct a venire for 23 grand jurors was merely directory, and did not alter the common law rule that a grand jury may consist of any number between thirteen and twenty-three. In State v. Davis, 2 Iredell, 153, the same ruling was made in an able and elaborate opinion by JUDGE GASTON, concurred in by JUDGES RUFFIN and DANIEL. There the statute, which was held directory, provided that "the first eighteen shall be a grand jury for the county." The Judge said: "We do not doubt but that it is competent for the Legislature to declare that although a bill be found by 12 of a grand jury, the accused shall not be put upon his trial, and that the bill so found shall not be deemed an indictment unless the grand jury consisted of 18 jurors. The question is, has the Legislature made such a declaration, or any enactment tantamount to such a declaration? It does not in terms declare that a grand jury constituted of less than 18 shall be insufficient to find a bill. It does not purport, otherwise than necessarily results from the directions given, to add to, or in any way modify, the operation of the ancient rule in regard to the necessary number of a grand jury, and it cannot be believed that if any addition to, or modification of, this important rule were intended, but that it would have been distinctly and unequivocally announced." SHAW, RUFFIN and GASTON, are great names in a long line of distinguished jurists, and their judicial utterances will always command the highest respect, but we cannot adopt their reasoning in this instance. May we not ask with equal, if not with greater force, how the Legislature, when enacting a new rule, in terms prescribing *732 a definite number to constitute a grand jury, could have intended to preserve the ancient rule which permitted the grand jury to be constituted of an indefinite number between 13 and 23?
In State v. Rockafellow, 1 Halstead (N.J.), 340, also cited as an authority by the Court in Clare's case, the statute declared every person summoned as a grand juror should be a freeholder to the value of £ 100. It was held mandatory, the Court saying: "So positive and affirmative a description as this, implies in our mind a negative, as much as if it was actually expressed." We regard this method of reasoning as to the legislative intent as most satisfactory, and as specially applicable to the case before us.
The case of State v. Ostrander,
It was well and truly said by this Court in Clare's case that "under any government of law, the trial of persons accused of crime, from its commencement to the conclusion, should be scrupulously conducted according to the requirements of thestatutory, as well as the fundamental laws of the land."
For these reasons the judgment of the Circuit Court will be affirmed.
Judgment affirmed with costs above and below.
(Decided November 16th, 1900.) *733