Cooper v. State

• Decision Date: 23 June 1885
• Citation: 20 A. 986,64 Md. 40
• Parties: COOPER v. STATE. [1]
• Court: Maryland Court of Appeals

20 A. 986

64 Md. 40

COOPER v. STATE. ^[1]

Court of Appeals of Maryland

June 23, 1885

Appeal as upon writ of error, from criminal court of Baltimore city.

Argued before ALVEY, C.J., and YELLOTT, STONE, MILLER, IRVING RITCHIE, and BRYAN, JJ.

A Robinson White and George Weld, for appellant.

Edgar H. Gans and Charles B. Roberts, Atty. Gen., for the State.

RITCHIE J.

The plaintiff in error, who is a negro, was indicted in the circuit court for Baltimore county for rape. On his arraignment he pleaded not guilty. Counsel was then assigned to defend him. A week afterwards, the counsel's appearance was stricken out by leave of the court. Upon suggestion and affidavit of the prisoner, the record was transmitted to the criminal court of Baltimore. Here counsel was again assigned him. Before proceeding to trial, the prisoner filed his petition for removal of the case to the United States circuit court. The allegations of the petition are that, under the statutes of Maryland prescribing the qualifications and mode of selecting jurors, there is a partial exclusion of colored persons, as such, from jury service; that in the circuit court for Baltimore county it has been the practice to select no colored persons to serve as jurymen because of their race and color, and that the grand jury which found the indictment was composed exclusively of white persons; and that by reason of said statutory provisions, and of the intentional selection by the court of white persons only to be drawn as jurors, the petitioner was denied the equal protection of the laws and could not enforce, in the judicial tribunals of the state, his right to be tried only under an indictment found by a grand jury from which the state of Maryland had not excluded any of his own race, because of their race and color, in violation of the fourteenth amendment of the constitution of the United States. This petition was refused. Thereupon the prisoner asked leave to withdraw the plea of not guilty that he might plead in abatement the same objection asserted in his petition for removal, of alleged discrimination against colored persons as jurors by the laws of Maryland. The allegation of an actual exclusion by the judges of the circuit court we do not understand to be renewed in the offered plea. But if such an allegation be implied, the views hereinafter expressed as to the tenor of said plea will cover it. The court overruled the motion to withdraw the plea of not guilty, and to admit the plea in abatement; and the prisoner went to trial on his plea of not guilty. The jury found against him, and judgment was entered, and sentence pronounced accordingly. In so far as the allegation of the actual exclusion by the circuit court of colored persons from the jury, because of their race and color, appears in the petition for removal to the United States court, it is clear the court did not err in overruling the application for removal on that ground. It has been expressly decided that, under section 641, Rev. St. U.S., the act of congress conferring the right of removal, in aid of the enforcement of the fourteenth amendment, such right exists only when the discrimination because of race or color is found "in the constitution or laws of a state, as expounded by its highest tribunals;" and that, when actual exclusion by the officers of a state is relied on, it must be availed of in the state court itself, whose ruling may be reviewed by the appellate courts of the state, and by the supreme court of the United States. Neal v. Delaware, 103 U.S. 393. If this allegation is embraced in the tendered plea of abatement, the only other place in the record it is to be found, if at all, it can be considered by us only if the court's action in refusing to admit the plea is reviewable.

The general rule undoubtedly is that after pleading in bar to a felony it is too late to plead in abatement; the withdrawal of the plea of not guilty, and filing such a plea, being a matter of favor or discretion with the court. "When the defendant has any matter to plead in abatement, the proper time to introduce it is before he pleads to the felony. But there are instances of his being permitted, as a matter of favor, after the plea of not guilty has been recorded, to withdraw it, and plead to the jurisdiction." 1 Chit. Crim. Law, 425. "Without leave of the court, which is granted only in very strong cases, the plea of not guilty cannot be withdrawn to let in a plea of abatement." Whart. Crim. Pl. & Pr. § 426. "After the general issue or any plea in bar, it is too late to plead in abatement, except on leave to withdraw the former." 1 Bish. Crim. Proc. § 756. And in U.S. v. Gale, 109 U.S. 65, 3 S.Ct. 1, it is held: "An objection to the qualification of grand jurors, or to the mode of summoning or impaneling them, must be made by a motion to quash, or by a plea in abatement before pleading in bar." We perceive nothing in the record that indicates that the court acted outside the legal discretion in refusing the application to let in the plea. The case of Cochrane v. State, 6 Md. 400, cited by counsel for plaintiff in error, in which it was decided that a prisoner has the right unconditionally to...