213 A.2d 475 (Md. 1965), 368, Schowgurow v. State

Docket Nº:368.
Citation:213 A.2d 475, 240 Md. 121
Opinion Judge:[10] Oppenheimer
Party Name:Lidge SCHOWGUROW v. STATE of Maryland.
Attorney:[7] J. Grahame Walker (on both arguments), with whom was J. Gifford Scarborough on the brief, for the appellant.
Case Date:October 11, 1965
Court:Court of Appeals of Maryland

Page 475

213 A.2d 475 (Md. 1965)

240 Md. 121



STATE of Maryland.

No. 368.

Court of Appeals of Maryland.

October 11, 1965

Page 476

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[240 Md. 123] J. Grahame Walker, Bethesda (J. Gifford Scarborough, Elkton, on the brief), for appellant.

Roger D. Redden, Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., Baltimore, and Walter M. Baker, State's Atty., for Cecil County, Elkton, on the brief), for appellee.

Argued June 1, 1965 before PRESCOTT, C. J., and HAMMOND, MARBURY, SYBERT, and OPPENHEIMER, JJ.

Reargued Sept. 16, 1965 before PRESCOTT, C. J., HAMMOND, HORNEY, MARBURY, and OPPENHEIMER, JJ., and DULANY FOSTER and SHIRLEY B. JONES, Specially Assigned, JJ.


In this appeal by a Buddhist from a conviction of murder, we are confronted with the question of whether the provision of Article 36 of the Maryland Declaration of Rights that no person shall be deemed incompetent as a juror on account of religious belief 'provided, he believes in the existence of God' has been rendered unconstitutional under the Fourteenth Amendment by the decisions of the Supreme Court of the United States.


In Torcaso v. Watkins, 223 Md. 49, 162 A.2d 438 (1960), this Court held, in a unanimous decision, that a person appointed a notary public by the Governor, who declined to take [240 Md. 124] on oath of office because it required a declaration that he believed in the existence of God, was not deprived of any of his rights under the Federal Constitution. Judge Henderson, for the Court, found that the declaration of belief in the existence of God required by Article 37 of our Declaration of Rights as a qualification for State office was not discriminatory or invalid. He said 'it seems clear that under our Constitution disbelief in a Supreme Being, and the denial of any moral

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accountability for conduct, not only renders a person incompetent to hold public office, but to give testimony, or serve as a juror.' 223 Md. at 59, 162 A.2d at 443. The Supreme Court of the United States, on appeal, reversed our decision. Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961). In an opinion expressing the views of seven members of the Court Mr. Justice Black held that the Maryland constitutional requirement invaded the appointee's freedom of belief and religion and could not be enforced against him. The other two members of the Court, Justices Frankfurter and Harlan, concurred in the result.

This Court pointed out in its decision that the provisions of the Federal Constitution are supreme, even over a provision of the State Constitution, and that the First Amendment to the Federal Constitution is applicable to the states through the Fourteenth Amendment, as a deprivation of life, liberty, or property, without due process of law, or a denial of the equal protection of the laws. 223 Md. at 57, 162 A.2d 438, and cases therein cited. It was in the interpretation of the 'establishment of religion' clause of the First Amendment as applied to Torcaso that the Supreme Court differed from this Court, and its decision, if applicable to the case here presented, under our system of government, is controlling.

The appellant is a Kalmuck of Mongolian descent. He was raised in the Buddhist faith and has continuously been and was at the time of his indictment and trial an adherent of that faith. In an affidavit duly filed, he stated the Buddhist religion, to which he adheres, does not teach a belief in the existence of God or a Supreme Being. 1 By timely motions, he challenged [240 Md. 125] the compositions of the grand jury which indicted him and the petit jury which tried and convicted him. He contended below, and contends here, that because Article 36 of the Maryland Declaration of Rights requires jurors to express a belief in the existence of God, the juries were selected in violation of the First and Fourteenth Amendments of the Federal Constitution. The motions were denied.

The conclusion is inescapable that every member of the grand jury which indicted the appellant and of the petit jury which tried him was required, as part of his oath or affirmation, to declare a belief in God, as a condition to his taking office. Article 36 of the Maryland Declaration of Rights provides, inter alia, that no person otherwise competent shall be deemed incompetent as a juror on account of his religious belief, 'provided, he believes in the existence of God, and that under His dispensation such person will be held morally accountable for his acts, and be rewarded or punished therefor either in this world or in the world to come.' Article 37 provides that 'no religious test ought ever to be required as a qualification for any office of profit or trust in this State, other than a declaration of belief in the existence of God; * * *' In our decision in Torcaso, Judge Henderson, for the Court, held that belief in the existence of God, without any other religious test, was a qualification for office, and that the provision of Article 37 is complete in itself and needs no legislative enactment to carry it into effect. 223 Md. at 56, 57, 162 A.2d 438. A grand or petit juror serves in an office of trust (apart from profit). In Maryland, both grand and petit jurors are an integral part of our judicial system; they are regarded as fundamental safeguards to individual

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liberty, and, in their deliberation, each member exercises a part of the sovereign power of government in the administration of justice. In re Report of Grand Jury, 152 Md. 616, 619-621, 137 A. 370 (1927); Danner v. State, 89 Md. 220, 225-227, 42 [240 Md. 126] A. 965 (1899). In this Court's decision in Torcaso, as we have noted, it was said that under the Maryland Constitution, disbelief in a Supreme Being renders a person incompetent to serve as a juror.

Because of the requirement of the Maryland Constitution, it has been the duty of nisi prius judges to make belief in God a condition to service as a juror. There is a strong presumption that judges and court clerks, like other public officers, properly perform their duties. Lewis v. United States, 279 U.S. 63, 73, 49 S.Ct. 257, 73 L.Ed. 615 (1929); See Fidelity & Casualty Co. v. Riley, 168 Md. 430, 433, 178 A. 250 (1935); Union Trust Co. v. State, 116 Md. 368, 372, 81 A. 873 (1911). In denying the appellant's motion to dismiss the indictment, Judge Rollins concluded, at least for the purpose of the ruling, that the court may presume the members of the grand jury to have been in fact required, as a condition of service, to affirm a belief in the existence of God. In ruling adversely on the challenge to the petit jury and the motion that they be dismissed, Chief Judge Carter, on behalf of Judges Rollins and Keating and himself, presumed that the jurors were selected in accordance with the requirement of the Maryland Constitution that they believe in the existence of God. The court acted on that presumption.

Moreover, this Court takes judicial notice of the fact that it is and for many years has been a widespread practice in this State, not only for grand and petit jurors to be questioned as to their belief in God as part of their oath, but also for prospective jurors to be so questioned, orally or in written interrogations, before their names are placed on the jury lists, and that any person who does not state his belief in God is excluded. Absent an adjudication by this Court or the Supreme Court of the United States that this practice is unconstitutional, the judges, clerks and other court officials who so made belief in God a requisite to jury service were properly performing their duties under our Constitution and the decisions of this Court.

The State does not deny that the Supreme Court's decision in Torcaso renders unconstitutional the long established law of this State that expression of a belief in the existence of God [240 Md. 127] is a condition precedent to holding public office. 2 If, as was held by the Supreme Court in Torcaso, a notary public cannot constitutionally be required to demonstrate his belief in God as a condition to taking office, it follows inevitably that the requirement is invalid as to grand and petit jurors, whose responsibilities to the public and to the persons with whom they deal are far greater.

In a long line of cases, the Supreme Court has consistently held that a criminal defendant is denied the equal protection of the laws as guaranteed by the Fourteenth Amendment if he is indicted by a grand jury or tried by a petit jury from which members of his race have been excluded because of their race. Eubanks v. State of Louisiana, 359 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991 (1958) and cases therein cited. See Annot., Group or class discrimination in selection of grand or petit jury as prohibited by Federal Constitution--Supreme Court cases, 2 L.Ed.2d 2040 (1958). While most of the cases deal with the exclusion of Negroes, the rule has also been applied to the exclusion of persons of Mexican descent.

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Hernandez v. State of Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954). In that case, Mr. Chief Justice Warren, in delivering the opinion of all the Justices, said:

'Throughout our history differences in race and color have defined easily identifiable groups which have at times required the aid of the courts in securing equal treatment under the laws. But community prejudices are not static, and from time to time other differences from the community norm may define other groups which need the same protection.' 347 U.S. at 478, 74 S.Ct. at 670.

In Juarez v. State, 102 Tex.Cr.R. 297, 277 S.W. 1091 (1925), the appellant, a Roman Catholic, who had been convicted [240 Md. 128] of selling intoxicating liquor, appealed on the ground that the indictment upon which he was convicted had been returned by a grand jury from which all Catholics had been deliberately excluded as a result of design on...

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