Johns v. State

• Decision Date: 27 January 1881
• Citation: 55 Md. 350
• Parties: EDWARD F. JOHNS v. THE STATE OF MARYLAND. SAME v. SAME.
• Court: Maryland Court of Appeals

55 Md. 350

EDWARD F. JOHNS v. THE STATE OF MARYLAND.

SAME v. SAME.

Court of Appeals of Maryland

January 27, 1881

The cause was argued before BARTOL, C.J., ALVEY, ROBINSON and IRVING, J.

Henry W. Archer, for the appellant.

Charles J. M. Gwinn, Attorney-General, for the appellee.

ALVEY J., delivered the opinion of the Court.

This case is brought into this Court by appeal, under the Act of 1872, ch. 316, allowing bills of exceptions and appeals to be taken in criminal cases.

The traverser was indicted as a defaulter to the State, under the Act of 1872, ch. 329. There was a demurrer to the indictment which was overruled, and after verdict of guilty, there was a motion in arrest of judgment entered, which was also overruled; but as there has been no final judgment upon the verdict, those rulings are not brought up for review by the appeal allowed under the statute, and can only be brought here after final judgment, as provided in Rule 1, for the regulation of appeals and writs of error. 29 Md., 1. There is therefore no question presented on this appeal except such as may be found to be properly presented by bills of exception.

1. After the demurrer to the indictment had been overruled by the Court, the traverser pleaded in abatement, that the grand jury, by whom the indictment was found, had not been legally drawn, and was not, therefore, a lawfully constituted grand jury. The plea sets forth the particulars in which it is supposed there was a failure to conform to the directions of the statute in drawing the jury. It does not appear that the truth of the matters alleged was verified by affidavit. The plea was traversed by the State; and the issue of fact thus formed was tried before the Court instead of a jury. Evidence was offered in support of the averments of the plea, and which is set out in the first bill of exception; but, upon the trial of that particular issue, there does not appear to have been raised any question as to the admissibility of evidence, or any distinct proposition of law made, upon which the Court was required to rule. There is no statement of facts as having been found by the Court; but at the close of the evidence, as set out in the bill of exception, it is simply stated that the Court overruled the plea in abatement, and decided that the grand jury, drawn from the box mentioned by a particular witness, had been legally constituted, and that the traverser should plead to the indictment. It is manifest, therefore, if the ruling of the Court, as stated in this exception, is to be reviewed by this Court, it would be first necessary that we should review the evidence, and ascertain what facts are properly deducible therefrom, before we could proceed to determine the question of the correctness or incorrectness of the ruling of the Court, upon the whole evidence before it. But it is no part of the function of this Court, in a case like the present, to review evidence and find the facts that may have been the basis of the rulings of the Court below.

It was at the option of the traverser to try the issue of fact raised upon his plea either before the Court or by a jury. When an issue is joined upon a plea in abatement or replication thereto, the issue may be tried by a jury without delay (2 Leach, 478; Chitty Cr. L., 450, 451; 1 Whart. Cr. L., sec. 537; Rex vs. Gibson, 8 East, 107); and if the issue had been tried before a jury, clearly this Court would have nothing to do with the finding of facts. But whether it be tried before the Court or jury, unless there be a special finding of the facts, spread upon the record, either in the form of a special verdict or a special finding by the Judge, this Court, not being able or authorized to make any conclusion in regard to the question of fact, cannot, therefore, determine whether the general finding or conclusion upon the whole case, be justified or not. When the facts are found and spread upon the record, it then becomes the duty of this Court to see that the Court below has correctly applied the law to the facts thus found. As was said by the Court in the case of Ford, 12 Md., 547, "Whilst the Court of review cannot find the facts, yet, when the facts are found by the Court or the jury below, as the case may be, it is but its proper and legitimate province to see that the inferior Court has pronounced correctly the law as applicable to the facts." It was upon this principle that the case of Clare, 30 Md., 164, was decided. In that case, some of the pleas in abatement had been demurred to by the State, and others had been traversed, and all the questions raised by the pleas in abatement, as well those of fact as those of law, were tried before the Court, in whose judgment the facts were specially found and set forth, and the case was brought to this Court on writ of error, which presented the whole record for review. The facts were found by the Court below, not by this Court; and it was only because the facts were so found, that this Court was enabled to review the law that had been applied to those facts.

But, according to the statement of the bill of exception, the Court overruled the plea in abatement; and in this the Court was well justified, irrespective of the testimony offered, for the plea, in the manner it was pleaded, was a mere nullity. As we have already stated, the plea was without affidavit; and the Stat. 4 Ann, c. 16, sec. 11, which has been construed to apply to criminal cases, (3 Burr., 1617; 1 Whart. Cr. L., sec. 536,) expressly provides, "that no dilatory plea shall be received in any Court of record, unless the party offering such plea do, by affidavit, prove the truth thereof," &c. This provision of the Statute of Ann is in force in this State, and must be complied with, or otherwise dilatory pleas may be rejected or treated as nullities. Graham vs. Fahnestock, 5 Gill, 215.

In 1 Bac. Abr., p. 34, tit. " Abatement O," it is said, "if a plea in abatement is not signed by counsel the plaintiff may sign judgment, for it is no plea at all; and so if no affidavit be annexed, or a defective affidavit."

It has been ruled in some cases, though the reverse in others, that if a plaintiff in a civil action replies to a plea in abatement without the affidavit, he thereby waives the defect; though in a criminal proceeding the rule is different, and no such effect is produced. Graham vs. Ingleby, 1 Wels., Hurl. & Gord., 651, 655; Reg. vs. Bloxham, 6 Q. B., 528. The general rule, doubtless, is, that while an irregularity may be waived, a mere nullity cannot be. Taylor vs. Phillips, 3 East, 155.

2. The second exception taken by the traverser presents the question, whether the State is bound to call and present to be sworn or challenged, all jurors or talesmen that may be drawn or ordered to be summoned, in the exact order in which they are drawn, or summoned by the sheriff? or, if some, or a sufficient number, of those last on the list, have been summoned, and actually appear, whether the Court may not proceed to make up the panel from those appearing, without waiting for those named earlier on the list, or those first summoned by the sheriff, if they should fail to appear for any cause?

We can entertain no doubt in regard to this question, and think that the ruling of the Court below, as set out in this exception, was clearly correct. So far as we know, it has been the uniform practice of the Courts of this State, to proceed to make up and swear the panel from such jurors or talesmen as have been found attending the Court, without waiting for or directing process against others, who may have failed to attend, and whose names may have been first drawn, or who may have been first summoned. The accused has no special right in having any particular individual or individuals presented to be sworn as jurors, rather than others equally competent. All that he has a right to demand is, that the persons presented to be sworn as his triers, shall be good and lawful men, competent, under established rules of law, to be sworn in his case. The mere order of their being drawn or summoned cannot in any way affect their competency, nor can it deprive the accused of any right that he may have in the organization of the jury. Therefore, it is no ground of objection by the traverser, that the persons drawn or summoned as jurors or talesmen were not called to the book in the order in which their names appeared in the list, or the order in which they may have been drawn or summoned. The prevailing practice is founded in convenience, and often in the necessities of the case; and unless constrained by authority, we should not be willing to question or disturb that practice.

3. In the third exception it appears, that the State offered to prove by a former clerk to the County Commissioners, an entry on a ledger or book that had been kept by him as such clerk, showing the amount of State taxes that had been levied and placed in the hands of the traverser, as collector, for the year 1878; and then proposed to ask the witness whether the taxes mentioned in the entry were placed in the hands of the traverser for collection. To this offer, the traverser objected, and proved by the witness that he had made out and delivered to the traverser, as collector, a book, containing items of the State taxes for that year; and that the delivery of the book was all that was done in the matter of placing the taxes, mentioned in the entry, in the hands of the traverser for collection; and further, that there was no special written order of the Commissioners, directing the placing the taxes in the hands of the traverser. The objection was overruled, and the evidence admitted; and we can perceive no possible objection to the ruling thus made.

From the statement in the bill of...