Lee v. State

Decision Date06 April 1933
Docket Number46.
Citation165 A. 614,164 Md. 550
PartiesLEE v. STATE.
CourtMaryland Court of Appeals

Appeal from Circuit Court, Baltimore County; T. Scott Offutt, Walter W. Preston, and C. Gus Grason, Judges.

Euel Lee, alias Orphan Jones, was convicted of murder in the first degree, and he appeals.


Argued before BOND, C.J., and URNER, ADKINS, PARKE, and SLOAN, JJ.

Bernard Ades, of Baltimore, and David Levinson, of Philadelphia, Pa for appellant.

Wm. L Henderson, Asst. Atty. Gen., and Godfrey Child, State's Atty., of Snow Hill, for Worcester County (Wm. Preston Lane Jr., Atty. Gen., James C. L. Anderson, State's Atty., of Towson, for Baltimore County, and James A. McAllister, State's Atty., of Cambridge, for Dorchester County, on the brief), for the State.

SLOAN Judge.

On September 29, 1932, Euel Lee, the appellant, was found guilty of murder in the first degree, by a jury in Baltimore county, whence the case had been removed at the instance of the appellant from Worcester county. On October 22, 1932, he was sentenced to death, and from this sentence he appeals. The offense for which he was indicted was the murder, on or about the 11th day of October, 1931, of Green Davis at Worcester county. A suggestion for removal was made in the circuit court for Worcester county, by the appellant, and that court removed the case to Dorchester county, an order which was later stricken out and an order passed removing the case to Baltimore county (Lee v. State, 161 Md. 430, 157 A. 723) where he was tried, on January 20, 1932, found guilty, and on January 28, 1932, sentenced to death. From this sentence he appealed on the ground that his rights had been prejudiced because no one of his race had been considered in the selection of the panel from which the petit jury at the December term, 1931, was drawn, an exclusion which was held to show prejudice in the opinion by Chief Judge Bond in Lee v. State, 163 Md. 56, 161 A. 284, and the case was remanded to the circuit court for Baltimore county for a second trial, with a repetition of the first result. The appellant offered no evidence. All of his resistance was to a trial of the case at the September term, 1932.

The appellant reserved thirty-three exceptions to adverse rulings which are appropriately grouped under the three questions here urged by him as cause for reversal.

The appellant, before proceeding with the trial, first filed a formal motion for a removal to a county "where there are no Jim Crow or segregation regulations against negroes," which was overruled, and abandoned at the argument on appeal. The right had been and can only be exercised once. Cooke v. Cooke, 41 Md. 362; Price v. State, 8 Gill, 296; Fountain v. State, 135 Md. 87, 108 A. 473.

The defendant then moved in writing for a continuance on the ground that certain "Jim Crow" regulations of the county commissioners of Baltimore county were prejudicial to his rights, that the court bailiffs or other authorities segregated negro spectators and witnesses into a portion of the court room, and that they "are excluded from the lavatories and toilets, open for use by white people, and are forced to refrain from using such toilets, but on the contrary, are directed, ordered and compelled to use only such toilets as are specifically set aside for use by negroes which fact is publicly announced by placards and signs prominently posted in said court room," and "that in Baltimore County negroes are excluded from hotels, restaurants, theatres, moving picture houses, etc., visited and patronized by white people, solely on account of their race and color," and that by reason of these facts and circumstances the defendant could not have a fair and impartial trial until such practices and regulations are discontinued.

No authority for such a motion, based on such reasons, was cited by defendant's counsel, the granting of a continuance, in the absence of abuse, resting in the discretion of the court. Downs v. State, 111 Md. 241, 73 A. 893, 18 Ann. Cas. 786; Newton v. State, 147 Md. 71, 127 A. 123; Cumberland & W. Transit Co. v. Metz, 158 Md. 425, 149 A. 565. In Aldridge v. U. S., 283 U.S. 308, 314, 51 S.Ct. 470, 473, 75 L.Ed. 1054, 1058, 73 A. L. R. 1203, a case relied on by the defendant to support his exceptions taken on the examination of jurors on their voir dire, it is said: "The question is not as to the civil privileges of the negro, or as to the dominant sentiment of the community and the general absence of any disqualifying prejudice, but as to the bias of the particular jurors who are to try the accused." White and colored alike are entitled to the equal protection of the laws, yet states have not been denied the right to pass and enforce many segregation statutes. Railways and other means of transportation have been required by states and lawfully, to provide separate compartments for whites and colored. Innkeepers, in the conduct of their business, are not required to throw their houses open to whomsoever chooses to be their guests. Hall v. De Cuir, 95 U.S. 485, 24 L.Ed. 547, 553; Chiles v. C. & O. R. Co., 218 U.S. 71, 30 S.Ct. 667, 54 L.Ed. 936, 20 Ann. Cas. 980. If the defendant's contention is sound or logical, then so long as this state has separate schools for white and colored children, he could not be brought to trial, for nowhere is the separation more marked than there. Yet it has been frequently held that separate schools do not violate the provisions of the Fourteenth Amendment. Cumming v. Board of Education of Richmond County, 175 U.S. 528, 20 S.Ct. 197, 44 L.Ed. 262, and note. In all of the cases the right to make such regulations in public places and institutions is recognized, provided equal advantages and comforts are afforded both races, and there is no suggestion here that this has not been done. Under these circumstances and in the light of the decisions on the subject it cannot be said that in refusing the motion for a continuance the trial court abused its discretion.

The next question submitted was to the validity of the panel of two hundred from which the petit jury for the September term, 1932, was drawn. At the first trial of the appellant, a challenge was made to the array, because the names of twenty-five petit jurors were drawn from a panel of two hundred from which negroes had been excluded, and it was held on the former appeal, 163 Md. 56, 161 A. 284, that this was prejudicial to the rights of the appellant. At the September term, 1932, the names of six colored men, qualified to sit as jurors, were included in the panel of two hundred, so that there can be no question about this panel meeting the requirements necessary to eliminate prejudice from that drawing.

When the names of two hundred persons taken from the tax and registration lists were placed in the jury box at the September term, 1932, the term at which the second trial was held, it appears that the names of all except forty-six had been in the panel of two hundred at the December term, 1931 when the first trial was had, and the contention of the appellant now is that the decision in the former appeal, 163 Md. 56, 161 A. 284, disqualified the entire list of two hundred, and therefore disqualified the one hundred and forty-four prospective jurors whose names went back into the box at the September term, 1932. It was held in the former appeal that the manner of selecting the jury sufficiently met the requirements of the statutes. Hollars v. State, 125 Md. 367, 93 A. 970; Code of Public General Laws, article 51, § 6; Code of Public Local Laws, article 3, § 387 et seq. There was no suggestion in the opinon that any of those whose names were in the panel for the December term, 1931, were not legally qualified to act as jurors. The decision was that the panel, as a whole, was defective...

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4 cases
  • Davis v. State
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1991
    ...from which the jury would be drawn. We see no error in the trial court's exercise of its discretion in this ruling." In Lee v. State, 164 Md. 550, 165 A. 614 (1933), counsel sought to inquire, for guidance in making peremptory strikes, whether any of the prospective jurors were acquainted w......
  • Cohen v. State
    • United States
    • Maryland Court of Appeals
    • December 9, 1937
  • Zimmerman v. State
    • United States
    • Maryland Court of Appeals
    • June 16, 1948
  • Hunter v. State
    • United States
    • Maryland Court of Appeals
    • November 11, 1949

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