Beck v. State

• Decision Date: 10 December 1926
• Docket Number: 37.
• Parties: BECK v. STATE.
• Court: Maryland Court of Appeals

135 A. 410

151 Md. 615

BECK v. STATE.

No. 37.

Court of Appeals of Maryland

December 10, 1926

Appeal from Circuit Court, Caroline County; Thomas J. Keating and Lewin W. Wickes, Judges.

Smith Beck was convicted upon the charge of bastardy, and he appeals. Reversed, and new trial awarded.

W Brewster Deen and J. Owen Knotts, both of Denton, for appellant.

Thomas H. Robinson, Atty. Gen., Herbert Levy, Asst. Atty. Gen., and Wesley E. Thawley, State's Atty., of Denton, for the State.

PATTISON J.

The appellant in this case was convicted by a jury in the circuit court for Caroline county, upon the charge of bastardy, for which sentence was imposed by the court. It is from that sentence or judgment that the appeal in this case is taken.

When the case was called for trial, the names of 20 persons were by the clerk of the court, written upon two lists. In accordance with the provisions of sections 13 and 17 of article 51 of the Code of 1924, one of these lists was delivered to the counsel for the state and the other to the counsel for the defendant, to be used by them in the selection of a jury to try the case.

At the request of the state's attorney and over the objection of the defendant, the name of Clayton T. Rowe was stricken from the list by the court, and by it the name of another was substituted therefor. The reason assigned by the court for striking Rowe's name from the list was "on account of the family connection between him and the traverser." To the action of the court in striking Rowe's name from the list and substituting the name of another therefor, an exception was taken by the defendant, which constitutes the first exception.

The court was then asked by the counsel for the defendant that before striking four of the names from the list, he be allowed to examine on their voir dire two of those whose names appeared thereon, to ascertain whether such persons had formed or expressed an opinion as to the guilt or innocence of the traverser. The court refused to allow the defendant to examine such persons at that time, but said:

"The court will permit the examination after the strike and before the jury is sworn." The defendant also excepted to this action of the court, and this forms the second exception.

In the first of these exceptions the name Rowe was stricken from the list, as stated, by the court, "on account of the family connection between him and the traverser." Just what that connection was is not shown by the record, but we will assume that the connection was of such a character that it disqualified him to sit as a juror in the case, and we discover no error in striking the name of Rowe from the list, nor do we find any error in the substitution of another name for the name so stricken therefrom, if it were selected in accordance with the statute, and, as the record does not disclose how it was selected, we will likewise assume that it was properly selected.

The sections of the Code, under which the question presented by the second exception arises, have been before this court for construction in the following cases: Lee v. Peter, 6 Gill & J. 452; Edelen v. Gough, 8 Gill, 90; Hamlin v. State, 67 Md. 333, 10 A. 214, 301, and Lockhart v. State, 145 Md. 602, 125 A. 829.

In the first of these cases (Lee v. Peter, supra), the question presented was identical with the question under consideration. The statute now under consideration was passed so early as 1797, and, as we have said, was before this court in the early civil case of Lee v. Peter, supra. In that case, as shown from the statement of facts, as reported:

"The plaintiff, before striking the name of any juror from the panel, offered to challenge for cause the polls of the said panel; that is, to show cause of challenge for favor against the several individuals composing the said panel, and prayed the court to have such causes of challenge examined, and tried separately against each poll challenged, according to the legal mode of trying and determining challenges against jurors for favor, and to have such challenges successively, so tried and determined before the striking of the said panel, so that if any such challenges be sustained, the said panel may be filled up by further draughts from the ballot box, or if that should be exhausted by successive challenges for cause, then from the tales until a panel of 20 competent jurors, free from challenge and cause of challenge for favor, be formed for the parties to strike from. But the court * * * overruled such motion, and refused to allow any challenges for favor to the polls of the said panel, until the same should have been struck by the parties, and the 12 jurors called to the Book to be sworn. * * * The plaintiff excepted."

The court, in passing upon the question presented by said exception, said:

"The object of the ninth section of the Act of Assembly of 1797, c. 87, was to give to the parties, plaintiff and defendant, each the privilege of striking, from the list of 20 jurors, 4 of the jurors against whom no cause of challenge could be established. In express terms, it saves to the parties the unimpaired enjoyment of the right of challenge. It is, consequently, the duty of the court, when required so to do, to extend to suitors the full benefit of both these privileges. Such is manifestly the policy and intent of

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