55 Md. 462 | Md. | 1881
delivered the opinion of the Court.
The appellant was indicted in the Circuit Court for Wicomico County for the murder of William E. Farrington, and was found guilty of murder in the second degree. During the trial he took six hills of exceptions to the rul
First Exception. — One of the panel of jurors was called, and being sworn and examined upon his voir dire, it was determined by the Court that he was an impartial juror; the prisoner then hy his counsel, moved the Court to require the State to exercise its right of peremptory challenge, before the prisoner should be required to exercise that right. But the Court overruled the motion, and required the prisoner to exercise his right of peremptory challenge before the State was called on to exercise its right; whereupon the prisoner excepted.
It is stated in the bill of exceptions that this ruling was in conformity to the uniform practice in that Court.
“Peremptory challenges are those which are made to the juror, without assigning any reason, and which the Courts are hound to respect.” 1 Ch. Crim. L., 534 m.
“ The right of peremptory challenge is deemed a most essential one to a prisoner, and is highly esteemed and protected in law. It is the right to exclude from the panel those who may be suspected of entertaining a prejudice ■against a party, where sufficient reasons cannot be given for their exclusion for cause.” Proffat on Jury Trials, sec. 155.
This right of challenge in capital cases, was recognized in England for a long period of time, to the number of thirty-five. It has since been regulated there by various ■ statutes, which need not be here referred to. In this '■State it has been secured to the prisoner by the Acts of 1737, ch. 2, 1744, ch. 20, 1751, ch. 14, 1809, ch. 138, .sec. 13, 1816, ch. 45. By the Act of 1841, ch. 162, the .right of peremptory challenge was extended to every ■person indicted for any crime or misdemeanor, the punishment whereof was confinement in the penitentiary. This Act was incorporated in the Code, Art. 50, sec. 15, which •^provides further that the accused shall not challenge
Before this Act was passed, no right of peremptory challenge hy the State existed in Maryland; except in the City of Baltimore under the Act of 1860, ch. 308, sec. 18. (2 Code, see. 618.)
By the common law the prosecution in criminal cases could exercise on behalf of the crown peremptory challenges to an unlimited extent, without alleging any other reason than “ quod non boni sunt pro rege.” Proffat, sec. 159.
This was changed by the Statute of 33 Edw., 1, ch. 4, which while it took away from the crown, the unlimited right of peremptory challenge, was construed by the Courts to allow the prosecution a qualified right of peremptory challenge, which was exercised hy allowing the prosecution the privilege of setting aside jurors when called, without assigning cause, until the panel was exhausted, when if the full number was obtained, such .jurors were not called, hut if not, their names were after-wards called on the general list. Reg. vs. Frost, 9 C. & P., 136; Mausel vs. The Queen, 8 E. & B., 54.
In Brandreth’s case, the question arose whether the prisoner should he required to exercise his right of peremptory challenge, before the right of challenge was
A similar decision had been made in Layer’s Case, 16 State Trials, 135.
We refer also to State vs. Bone, 7 Jones’ Law R., 121.
In Jones vs. The State, 2 Blatchford, 475, the same question here presented arose under the Indiana Statute. The Circuit Court overruled the motion of the defendant that the State’s Attorney should be required first to accept or reject the juror, before the defendant should be called on to make his election, and certain jurors after they had been accepted by the defendant, were set aside by the prosecuting attorney, which was alleged as error. The appellate Court in disposing of the question, said: “ The only question on this point is who shall first make his challenge ? If this were a new question, and we had it to settle, we should say that the State ought first to make her challenges, but as all the English authorities establish a different doctrine, and no American cases have been seen by us to authorize a different practice, we are bound for the present to sanction what the Circuit Court has done.”
In State vs. Hays, 23 Missouri R., 287, a similar question arose. The Missouri statute like our act of 1812, allowed the accused twenty peremptory challenges and the State four, the prisoner moved that the State should be required to exercise its right of challenge first, this was overruled and the panel or list of jurors, was furnished to the State’s attorney and to the prisoner, and each was required to exercise their right of peremptory challenge at the same time, by striking from the list of thirty-six jurors, the objectionable names, neither knowing which had been stricken by the other. This was alleged as error and cause of reversal. The Supreme
In Stale vs. Steeley, 65 Missouri, 219, it was decided that “ in criminal cases the State must announce her peremptory challenges of jurors, before the defendant can be required to announce his.” But that decision was made under a statute, which in express terms, prescribed that course of proceeding.
The Act of 1872 does not prescribe the order in which the challenges shall be made, or direct whether the State or the prisoner shall first exercise the right. It would seem, therefore, that the course of proceeding in this respect is left to the discretion of the Circuit Court. It appears from the statements of my brothers, who preside in the circuits, that the practice has not been uniform; while in several of the circuits the practice has been to require the State to challenge first; in the City of Baltimore, in the fourth circuit, and in the circuit from which this appeal comes, a different rule has prevailed. But it seems to us very clear that the action of the Circuit Court
The reasoning of the learned judge is applicable to the question before us. The only ground of objection to the ruling of the Circuit Court, urged by the appellant, is that he was thereby deprived of jurors, who were acceptable to him; hut it is obvious that the same result might follow, whether the right of challenge by the State he exercised before or after the prisoner has spoken. In either case the prisoner would not he deprived of any legal right, which as we have seen is not a right to select the jurors, hut simply to reject such as he may consider objectionable, to the number of twenfy. This privilege was enjoyed by the appellant without restriction.
And as the statute does not prescribe the order in which the challenges shall he made by the prisoner and the State respectively, the determination of that question was left to the judgment and discretion of the Circuit Court.
It follows 'that the ruling contained in the first bill of exceptions, furnishes no cause for reversal.
The second bill of exceptions was taken to the exclusion by the Circuit Court of the conversation between George Brown, one of the farm hands of the deceased, and Columbus Horsey, one of the witnesses for the State, which took place on the morning of the day when the deceased was killed. This testimony was offered by the defence on the cross examination of Columbus Horsey, who was an eye witness of the homicide. The witness on his examination in chief was asked, “ how came you to be there ?” and answered, “ George Brown told me Mr. Farrington was going after his pigs.” On cross-examination he was
To which question the State by its counsel objected, which objection the Court sustained, on the ground that the question of the State put to the witness, and his answer as far as it went, was mere matter of inducement, and that the balance of the conversation was not part of the res gestae, and would be mere hearsay, and immaterial to the issue in the cause, whereupon the prisoner by his counsel excepted.
There can he no doubt or question of the correctness of this ruling; and for the reasons assigned by the Circuit Court, the testimony was properly excluded.
The same may he said of the ruling in the third hill of exceptions, which presents the same question. The same witness was asked, “ what information was given him by Brown, in that conversation with him about Farrington going after his pigs.” The counsel of the prisoner being asked what the object of the question was, stated that “ they wanted to know all that Brown said of the deceased’s purposes in going after his pigs, including his manner and language in the declaration of such purposes.” This was excluded and very properly as such testimony would be mere hearsay, and wholly immaterial. In the argument of the cause in this Court, no point has been made by the appellant’s counsel, upon the second and third bills of exceptions, and no argument is needed to show that there was no error in the rulings of the Circuit Court upon the questions therein presented.
Fourth hill of exceptions. — It appears from the facts stated in the second• hill of exceptions, that the killing of the deceased by the appellant was proved by the witness, Ashhy Turpin, who also proved the circumstances which preceded and attended the homicide. It appears from his testimony, that there were some pigs on the farm of the
Evidence was also given hy witnesses introduced by the 'State, tending to show that George Brown, Thomas Handy, Archelaus Rounds and Ferdinand Goslee, were farm hands of Farrington, (the deceased,) at his residence, of whom Thomas Handy and Archelaus were summoned by deceased, through the witness, Ashby Turpin, to go with deceased and witness after the said pigs ; and that Brown ■and Goslee watched them as they went; that the deceased carried with him his revolver, in his left breast under his vest; and followed by Handy and Rounds went to the premises, and against the protest of the appellant, attempted to drive off certain hogs, and at the gate of the appellant leading into the county road, and on the inside thereof, the deceased was killed by the discharge of a gun, in the hands of the appellant. Columbus Horsey, Ashby Turpin, Thomas Handy, Archelaus Rounds and Nannie Turpin, daughter of appellant, were present and testified to the circumstances of the killing ; their testimony, except that of Ashby Turpin and Columbus Horsey is not contained in the record. It appears by the fourth bill of exceptions that George Brown, a witness for the State, on his cross-examination after testifying to substantially the same facts as had been deposed to by the witness Ashby Turpin, as to what took place after the witness and Ashby Turpin returned from the farm of the
The prisoner then proved hy William Brown, that after-breakfast, the witness with his brother George Brown, returned to Barrington’s house, George carrying with him’ the pistol caps, which were delivered to the deceased; at-that time Barrington was attempting to fire at a post; that later in the day witness saw the deceased and Ashby Turpin, followed by Tom Handy and Archelaus Rounds go over to Turpin’s, and soon after saw Mrs. Barrington, wife of the deceased, proceeding in the direction of Turpin’s, who went as far as the line fence which divided the-premises of the deceased from those of the prisoner ; that-witness saw the deceased and parties with him, and also-the prisoner and family moving about the premises of the prisoner, but was too distant to hear any words, saw them-move into the lane towards the gate ; heard the explosion of the gun at the gate, and immediately ran to the spot, and found the deceased lying on the ground near the gate in a dying condition, with a large revolver in the bosom of his coat, on the left side, which said revolver seemed to be the same that witness had seen the deceased have early in the day.
To which evidence so offered to he proved by the said Goslee the State objected, which objection the Court sustained, and refused to allow the said evidence to go to the jury, because the purchase of shot by the deceased was not known or communicated to the prisoner, and that several witnesses who were present, had testified to the circumstances of the killing. To this ruling the appellant, by his counsel, excepted.
This exception and the fifth, which present similar-questions, have been argued together, and will he disposed of in the same way.
The fifth bill of exceptions was taken to the exclusion by* the Court of evidence offered by the appellant, that in August, 18T9, the deceased, with Brady the witness, were driving cattle of the prisoner off the premises of the deceased, when the deceased, in conversation with the-witness, said, “ I don’t want his (Turpin’s) cattle to trespass on me, nor my cattle to trespass on him; hut if he (Turpin) ever crosses my path, I will shoot him as sure as-he is a man.” There being no proof given or offered that-
We are of opinion there was no error in the ruling by the Circuit Court contained in these exceptions.
The purchase by the deceased of shot from the witness Groslee, was in the forenoon of the day, and several hours before the homicide was committed, it is obvious that it was not part of the res gestee ; it further appears that it was not known to the appellant, and therefore was not admissible evidence upon any ground. As to the previous threats made by the deceased in his conversation with Brady, these were not known or communicated to the appellant.
This subject is very fully and ably treated in the excellent work by Wharton on Evidence in Criminal Cases, sec. 757: “Can evidence,” says the learned author, “to the effect that the deceased, prior to the homicide, threatened the defendant’s life be received, and if so is it a prerequisite to the proof of such threats that they be shown to have been communicated to the defendant? Certainly, if such evidence is offered to prove that the defendant had a right to kill the deceased, there being no proof of hostile demonstration by deceased, then it is irrelevant.” The author proceeds, in the same section, to show that, in some cases, such evidence ought to be received, and cites several authorities. Among these is Wiggins vs. The People, 93 U. S., 465, where it was held to be admissible. In that case the Court said, quoting from Wharton, that “ It was not relevant to show the quoanimo of the defendant, but it may be relevant to show that, at the time of the meeting the deceased was seeking defendant’s life.” There the question, whether the prisoner or the deceased commenced the encounter which resulted in death, was left in doubt, and it was held that in such case previous threats by the deceased, though not communicated to the defendant, were properly admissible in evidence, as tending to show that the encounter
But the rule is correctly stated by Wharton in tbe same •section “ that such evidence is inadmissible, unless proof be first given that there was an overt act of attack, and that the defendant, at the time of the collision, was in apparent imminent danger,” and for this many cases are •cited in note 2.
In this record no such proof appears, the homicide was proved by several eye-witnesses, no evidence appears to have been given of any overt act of attack by the deceased, nor is there any evidence tending to show that the appellant was in any apparent imminent danger. It was shown by the testimony of defendant’s witnesses that when the deceased obtained the pistol, he asserted that he would not use it except in self-defence, there was no proof that he drew the weapon upon the appellant, but on the ■contrary the testimony of William Brown, one of the witnesses for the defence, was that when he was shot down by the appellant, the weapon was in his breast pocket. In tbe face of this testimony, it is clear, both upon reason and ■authority, that the evidence offered in the fifth bill of ■exceptions was wholly inadmissible.
The sixth bill of exceptions presents the question, whether the wife of the appellant was a competent witness. She was called for the defence, but was not permitted to testify.
By the common law she was not a competent witness, this is conceded; but it is contended that she has been made competent by our Evidence Acts of 1864, ch. 109, •and 1876, ch. 357.
The Act of 1868, ch. 116, simply repealed and re-enacted with amendments the second section of the Act of 1864, it has no application here, and need not be further referred to. The question turns upon the construction of the first and third sections of the Act of 1864, and the Act of 1876.
The Act of 1864, sec 1, provides “that no person offered as a witness shall hereafter be excluded by reason of
The 3rd! section provides that'’no person who in any criminal proceeding, is charged with the commission of' any indictable offence, or any offence punishable on summary conviction, shall he competent or compellable to give evidence for or against himself, * * * * nor in
any criminal proceeding, shall any husband he competent or compellable to give evidence for or against his wife, nor shall any wife he competent or compellable to give-evidence for or against her husband, except as now allowed by law,” &c., &c.
The Act of 1876, ch. 357, repealed the 3rd section of the Act of 1864, and enacted in lieu thereof the following:
3. “ In the trial of all indictments, complaints and other proceedings against persons charged with the commission of crimes and offences, and in all proceedings in the nature-of criminal proceedings, in any Court of this State, &c., &c., the person so charged shall, at his own request, hut not otherwise, he deemed a competent witness.” * * *
The contention on the part of the appellant is that, under the first section of the Act of 1864, if it had stood alone the party accused, himself or his wife would have been a competent witness; but the third section qualified
If this construction he sound, it would follow that the wife of the accused would not only he competent to testify in his behalf, hut would he compellable to testify against him — a conclusion which we would hesitate to adopt, unless compelled by the plain meaning and intent of the statutes. But we think this construction is not correct.
The object and intent of the Act of 1864 was to remove the incapacity of persons called to testify, arising from crime or from their interest in the subject-matter of the suit.
But the incompetency of a husband or wife to testify for or against each other in a criminal prosecution at the common law arose not from interest in the result of the •suit, hut was based upon considerations of public policy, growing out of the marital relation; as said hy Wight-man, J., in Stapleton vs. Crofts, 83 Eng. C. L. R., 369, “ from the interest which the public have in the preservation of domestic peace and confidence between married persons.” We refer also to Wharton’s Cr. Ev., secs. 400, 431; Lucas vs. Brooks, 18 Wall., 453; Steen vs. The State, 20 Ohio, 333.
Looking at the language of the first section of the Act of 1864, we think it very clear that standing alone it would not operate to alter the rule of the common law which made a husband or wife an incompetent witness in ■a criminal prosecution against the other.
The words of the section in which “ the parties and their wives and husbands are declared to be competent and compellable to give evidence,” in our opinion, apply only to civil suits, and have no reference to criminal prosecutions. This is apparent not only from the phraseology of this part of the law, where it speaks of “the parties litigant ” and of “persons in whose behalf any suit, action, or other proceeding may be brought or defended’’ language only applicable to civil suits, but also from the terms by which the parties themselves and their wives and husbands are made not only competent but compellable to testify, a provision which evidently was not. intended to apply to criminal prosecutions.
The third section was passed to prevent any possible misconstruction of the first section in this respect; and when by the Act of 1876 the third section was repealed, and the parties accused were allowed to testify in then-own behalf, this last Act had no other effect except so far as it related- to the parties accused, making them competent to testify in their own behalf in criminal cases.
By repealing the third section of the Act of 1864 the construction of the first section was not changed, and that section, properly construed, did not remove the incompetency of the wife, which existed at the common law, to testify in the case of a criminal prosecution against her husband.
Rulings affirmed and cause remanded.