Green v. State

• Decision Date: 14 July 1882
• Citation: 59 Md. 123
• Parties: MITCHELL GREEN, Colored v. THE STATE OF MARYLAND
• Court: Maryland Court of Appeals

59 Md. 123

MITCHELL GREEN, Colored v. THE STATE OF MARYLAND

Court of Appeals of Maryland

July 14, 1882

The cause was submitted to BARTOL, C.J., STONE, GRASON, ALVEY and IRVING, J.

A R. Weedon, for the plaintiff in error.

Charles J. M. Gwinn, Attorney-General, for the defendant in error.

IRVING J., delivered the opinion of the Court.

The plaintiff in error having been indicted, and convicted of forgery, by the verdict of a jury, in the Circuit Court for Queen Anne's County, moved in arrest of judgment, because a member of the grand jury indicting him, and one of the petit jury which tried and convicted him, were over the age of seventy years. The Court overruled the motion, and the case was brought to this Court on a writ of error. The same reasons are assigned here, and relied on, as ground of error.

The question presented is, does our statute, on the subject render persons over seventy years incompetent to serve as grand or petit jurors; so that, if a person over seventy years does actually sit on the jury finding the indictment or the one trying the issue, the finding or verdict is thereby rendered void?

The first section of Article 50, of the Code of General Laws, provides, that " no person shall be summoned and returned on a panel as a juror who may not have arrived at the age of twenty-five years." The second section provides, that " no Judge of the Orphans' Court shall be summoned as a juror." The third section says, "all persons over seventy years of age, and all delegates, coroners, schoolmasters and constables during their continuance in office shall be exempt from attendance as jurors." These several provisions existed when, by law, the sheriff chose and summoned the jury. They are still the law, notwithstanding the mode of selection has been changed. A new system was introduced by the Act of 1867, chapter 329, which was amended by 1870, chapter 410. The first section of the last mentioned Act requires the clerk of the county commissioners, for each county, within a prescribed period, before the beginning of certain terms of the Court, to make a list of the male taxables, inhabitants of the county not known to him to be under twenty-five years of age, and to certify the same to the Court. From this list and the poll books of the election districts of the county used at the preceding election in the county, by the second section of the last mentioned Act, the Judge is directed to select the names of persons to be placed in the box from which to draw the jury for the ensuing term. The sixth section of the Act enacts, that "the name of no person disqualified or exempted by existing law from serving as a juror, or who by existing law the sheriff is forbidden to summon, as such, shall be selected and placed upon the panel or list from which the drawing is to be made as directed by this Act, nor shall any person be drawn and summoned to two Courts successively, but the selection or drawing of any person disqualified as a juror shall not invalidate the drawing or selection, but such error may be corrected by drawing another person from the box in the place of the person improperly selected or drawn." It is further provided in the same section, that on the return by the sheriff that any person is absent, dead or disabled the Court or Judge may draw another in his stead. Power is also given the Court to coerce attendance.

We think the Circuit Court was right in holding, there was no sufficient ground for arresting the judgment. According to all the authorities an objection of this character should have been made at an earlier stage of the cause, to be of any avail. 1 Bishop on Criminal Procedure, 3 rd Edition, section 886; The King vs. Sutton, 8 B. & C., 417; Queen vs. Sulivan, 8 A. & E., 831; Burton vs. Ehrlich, 15 Pa St., 236; Stone vs. People, 2 Scam., 326; Dayharb vs. Enos, 1 Selden, 531; Brown vs. State, 7 English, ( Ark.) 623; Thrall vs. Smiley, 9 Cal., 529; Haight vs. Halley, 3 Wendell, 258; State vs. Ward, 2 Hawks., 443; State vs. Call, 9 Hump., 626; Wilcox vs. School District No. 1, in Lempster, 6 Foster, (N. H.) 303; 1 Pick., 38; Monroe vs. Bingham, 19 Pick., 368; Clare's Appeal vs. The State, 30 Md., 163. In Shane vs. Clarke, 3 H. & McH., 101, where a juror was discovered after verdict not to have taken the oath of allegiance to the State, it was deemed a sufficient ground for the exercise of discretion in granting a motion for a new trial. Here the motion is not for new trial but in arrest. In Rex vs. Sutton already cited, alienage was held a ground of challenge, but not to disturb the verdict. In this case the writ of error did not lie, and the same must be dismissed for it is based on extrinsic facts not in and on the record. The reasons assigned did not form proper ground for a writ of error. But as the object was to obtain the view of the Court on an important question of great public importance, we will give our views of it. We think a proper construction of the several provisions of our law on the subject gives an exemption to persons over seventy, and does not create a disability. 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 to make the jury a legal one; and unless the selections are made by the Judge in the manner pointed out by the statute, exception, at the proper time, and in the proper way, may be successfully taken to a jury improperly chosen or drawn; otherwise the statutory provisions would be wholly nugatory. But in respect to the direction about age, the weight of authority is strongly in support of the doctrine, that the duty imposed on the clerk of the commissioners about the list of male taxables, "not known to him to be under twenty-five years, and upon the Judge, in respect to the selection of persons from the box, over twenty-five and under seventy, is directory only. The law requires of them, of course, the honest exercise of their judgment respectively, as to the age of the persons put on the list, or placed in the box; but it is impossible for the clerk to know with absolute certainty who is under and who is over twenty-five years of age. The statute provides no method of ascertainment. He is only directed to exclude such persons from the list as are known to him to be under twenty-five. All over that age, he is to put on, for the Act of 1870 omits the provision for excluding all over sixty-five, which was in the Act of 1867. This omission is important as indicating legislative intent in the change. There can be no doubt that wilful disregard of duty in this particular, would be punishable; but a simple mistake cannot and ought not to affect the validity of the list which he makes for the Court's guidance. Where the jury is selected and drawn, it would be impossible for the Judge to know with certainty whether all the persons he selects for the box are under seventy or over twenty-five. Ascertainment at the time of drawing and selecting is impracticable, and not provided for. His judgment is his guide. Proffatt on Jury Trials, sec. 130; Maxwell on Interpretation of Statutes, 337; Hardcastle on Construction of Statute Law, 121; 1 Bishop Crim. Pr., (3 rd Ed.) sec. 875; Cole vs. Perry, 6 Cowen...