Hooker v. State
| Decision Date | 04 December 1903 |
| Citation | 56 A. 390,98 Md. 145 |
| Parties | HOOKER v. STATE. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Howard County; James Revell and Wm. H Thomas, Judges.
Frederick Hooker was convicted of unlawfully setting fire to and burning a house, and appeals. Reversed.
Argued before McSHERRY, C.J., and BRISCOE, BOYD, SCHMUCKER, and JONES, JJ.
W Calvin Chestnut and Edgar H. Gans, for appellant.
Glenn H. Worthington, for appellee.
The appellant was indicted in the circuit court for Frederick county for arson and unlawfully burning a house in Frederick City. He filed a suggestion for removal, and the record of proceedings was transmitted for trial to the circuit court for Howard county. After the case was removed, he made a motion to quash the indictment, which was overruled, and he then demurred to each of the eight counts. The court sustained the demurrer to the last four counts, but overruled it as to the others; and the traverser was convicted on the fourth count, which charged the common-law offense of unlawfully, willfully, and maliciously setting fire to and burning a house of the traverser, contiguous to and adjoining a certain dwelling house, etc. The demurrer to that count was not pressed in this court, and the questions to be first considered are embraced in the first, second, and third bills of exception, which relate to the motion to quash.
1. Eleven reasons were assigned in the motion and an amendment thereto, but it will not be necessary to discuss all of them. The rulings complained of and presented by these exceptions relate to the refusal of the court to permit the traverser to ask members of the grand jury certain questions tending to impeach the indictment. The three apparently most relied on were as follows: "(2) Examine the indictment in this case, which I now hand you, and state whether or not the same was ever read, presented to, or voted on by your grand jury?" "(4) State whether or not the returning of said indictment 'True bill,' was in fact a mistake and an error on the part of the foreman?" "(10) State whether or not, in the return of the said indictment 'True bill,' the grand jury, or you as one of them have been or were deceived?" Those and similar questions were propounded to a member of the grand jury, and the record shows that 19 other members of that body had been summoned and were in court to be examined, but on objection by the state the witness was not permitted to answer any of the questions.
Just how far it is competent for grand jurors to testify concerning proceedings before them has given courts much concern, and has been variously decided. It is now generally conceded, and in this state definitely determined, that notwithstanding the oath of secrecy taken by a grand juror, he may be required to disclose in court some things that transpired in the jury room. As was said in Izer v. State, 77 Md. 110, 26 A. 282: "The oath of the grand juror undoubtedly precludes him for all time from voluntarily and of his own motion, or at his own instance, divulging the counsels of the state, his fellows, or his own; but there is in the very nature of things a tacit condition implied that, in the furtherance of justice, the juror shall in some instances speak when the law, through its constituted tribunals, explicitly commands him to do so." It was held in that case that he could be required to disclose what a witness had testified to before the grand jury on the trial of the witness for perjury, and also whether a particular person gave any evidence or was examined at all before the grand jury. In Owens v. Owens, 81 Md. 518, 32 A. 247, it was said: "Cases occur in which it is essential to call grand jurors as witnesses, but the rule should not be extended beyond what is necessary for the purposes of justice, and it would be exceedingly dangerous in most cases to permit them to explain or assign reasons for their actions." There it was held that a foreman of a grand jury, who had testified in a case for malicious prosecution that the charge against the plaintiff had been dismissed, should not be permitted to say why it was dismissed. In Kirk v. Garrett, 84 Md. 383, 35 A. 1089, a grand juror was permitted to contradict a witness in court by proving that he had testified differently before the grand jury. But while it is now settled in this state that they can testify under such circumstances, and for such purposes, as we have stated, this court has not heretofore been called upon to determine whether they should be permitted to testify to such matters as are presented by this record, and the decisions of other courts are very conflicting. On some points the line between the cases is sharply and distinctly drawn, and they cannot be reconciled. After citing authorities showing the conflicting views of other courts, it was said in Elbin v. Wilson, 33 Md. 144: "Be this, however, as it may, all the authorities concur in saying that the juror will not be permitted to state how any member voted, or the opinion expressed by his fellows or himself, or the individual action of any juror in regard to the subject-matter before them." Cases from other states are cited in 17 Am. & Eng.Ency. of Law (2d Ed.) 1295, to sustain a similar statement; but on the next page of that work many cases are cited in which it was held that grand jurors may testify as to whether the requisite number concurred in finding an indictment, and quite as many are cited on the other side of the question, where it was held that they could not so testify. In this state at least 12 of the grand jurors must concur in the finding of the indictment, and hence there is great force in the statement by Justice Preble in Low's Case, 4 Greenl. 452 (which seems to be the leading case in this country in favor of admitting the testimony), where he said: "Now, for courts to be solemnly resolving, and legal writers of the first eminence to be gravely stating, as matter of settled law, that if twelve, at least, of the grand jury do not concur in finding the bill, the indictment is void and erroneous, seems to me to be very idle, to say the least of it, if the party interested is not permitted to suggest the fact, and the courts are precluded from inquiring into the subject, or allowing the party to avail himself of the error." But there is much to be said on the other side. We have seen that it is settled in this state that jurors will not be permitted to state how any member voted, and as was said in Gitchell v. People, 146 Ill. 183, 33 N.E. 759, 37 Am.St.Rep. 147: "If grand jurors are allowed to state that twelve of their number did or did not concur in finding the indictment, it is difficult to see how they can avoid disobeying the injunction not to state 'how any member of the jury voted,' because the accuracy of the statement as to how many did or did not concur could hardly be tested by cross-examination or otherwise without revealing what particular jurors voted for the indictment, or what ones voted against it." It certainly would not do to permit grand jurors to simply testify that 12 did or did not vote for an indictment, without testing the accuracy of such statement by cross-examination, if the question is to be inquired into at all; and it would seem to be almost, if not quite, impossible in most cases to make a thorough investigation without disclosing who did vote to indict. Grand jurors do not always understand the meaning of technical terms in an indictment, and, if they are to be permitted to simply swear that they did not vote for an indictment, it might be because they did not understand the language set out in the indictment, which differed from what they supposed would be necessary. Take for example the ordinary count for assault and battery. A layman might honestly think he had not concurred in an indictment that contained such allegations as are usually found in such a count, when the testimony only showed a technical assault, without any battery. Or if the state's attorney includes counts for different offenses which may be joined, such as larceny and receiving stolen goods, burglary or robbery and larceny, grand jurors might truthfully say that they did not understand the accused was indicted for some such crime included in the indictment, when in fact it was inserted there by the state's attorney to meet the testimony as it might be developed on the witness stand.
It is also urged with great force that to deny the accused this privilege may require him to be tried under an indictment which is illegal, and in truth no indictment. But it is difficult to understand how an accused can legally acquire the information that less than 12 voted to indict. No grand juror can so inform him without violating his oath of secrecy, and, when the vote is taken, no one other than the grand jurors ought to be in the jury room. Nothing could be more detrimental to the proper administration of justice than to sanction a practice that would thus encourage parties who have been indicted to approach grand jurors to ascertain whether they took part in finding some particular indictment. Any grand juror who had a proper regard for his oath and his duty would refuse to give any information on the subject, and therefore we say we do not understand how an accused can legally ascertain that less than 12 voted to find an indictment, unless it come in some way through the court, of which we will speak presently. Under the old English practice, when it was necessary to state in the caption of every indictment that it was found on the oath of 12 men, a failure to so state would present the question; but when, as is the case under our practice, no one but a member of the grand jury knows whether the requisite number did vote to indict, it...
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