Lee v. State

• Decision Date: 05 July 1932
• Docket Number: 64.
• Parties: LEE v. STATE.
• Court: Maryland Court of Appeals

161 A. 284

163 Md. 56

LEE v. STATE.

No. 64.

Court of Appeals of Maryland

July 5, 1932

Appeal from Circuit Court, Baltimore County; T. Scott Offutt, Frank I. Duncan, and C. Gus Grason, Judges.

Euel Lee, alias Orphan Jones, was convicted of murder, and he appeals.

Reversed and new trial ordered.

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

Joseph R. Brodsky, of New York City (Bernard Ades, of Baltimore, and David Levinson, of Philadelphia, Pa., on the brief), for appellant.

Wm. L Henderson, Asst. Atty. Gen., and Godfrey Child, State's Atty., of Pocomoke City (Wm. Preston Lane, Jr., Atty. Gen Willis R. Jones, Deputy Atty. Gen., James C. L. Anderson State's Atty., of Towson, and James A. McAllister, State's Atty., of Cambridge, on the brief), for the State.

BOND C.J.

The appellant, convicted of murder in the first degree and sentenced to death, brings before this court for review rulings of the trial court on challenges on his behalf to the array of petit jurors. There is no question of any error, or any lack of fairness, in the proceedings in the trial by the jury ultimately sworn. Six of the members of that jury were selected from the panel regularly in attendance for the court term, and six from extra talesmen summoned from the courtroom. The questions submitted to this court are two: Whether a departure from the method specified by statute for placing names of taxpayers and voters before the court as a basis of selection of the panel of jurors for the term rendered the make-up of that panel illegal, and whether, in violation of the provisions of the Fourteenth Amendment of the Constitution of the United States, negroes were excluded from those summoned for the panel, and from those summoned from the courtroom. The appellant is a negro. See the previous appeal in the case, Lee v. State, 161 Md. 430, 157 A. 723. The appeal has not been perfected in entire compliance with the rules governing appeals to this court, and there has been filed a motion to dismiss it because a form of bill of exceptions to present the rulings sought to be reviewed was not presented and signed, as required by the rule of the trial court, during the pending term of court. The term in this instance, the December term of the court, expired on March 7, 1932, and the bill of exceptions was presented for signature on April 18, 1932, six weeks after the close of the term. The attorneys for the state refused to approve the form, and the court declined to sign it as a bill of exceptions because of lack of power to do so then, but did certify that the bill correctly reported the transactions which attended the selection of the jury.

A bill of exceptions seems not to be required, and therefore the failure to present the form prepared, within the time fixed for presenting bills of exceptions, does not afford ground for dismissing the appeal. As a bill of exceptions, the paper could not be considered because of the delay, but a bill of exceptions is not the only method of bringing before this court testimony and facts appearing in summary proceedings, as upon various motions. Fick v. Towers, 152 Md. 335, 338, 136 A. 648. Bills of exceptions were not permitted in criminal cases until recent years, in Maryland not until the Acts of 1872, chapter 316, yet challenges to arrays of jurors, for principal cause, as here, with the facts laid before trial courts, have long been considered on appeals at common law. It was always necessary that the challenges be in writing, and be answered in writing (Chitty, Criminal Law, 546), but they were made in several forms of written proceedings. Sometimes pleas in abatement were used to raise objections to arrays of grand jurors. Avirett v. State, 76 Md. 510, 537, 25 A. 676, 987; Clare v. State, 30 Md. 172. And there are many instances of the use of motions to quash indictments, and motions in arrest of judgment, to challenge arrays of both grand and petit jurors. Burk v. State, 2 Har. & J. 426; Horsey v. State, 3 Har. & J. 2; Cooper v. State, 64 Md. 44, 20 A. 986; Hollars v. State, 125 Md. 367, 368, 93 A. 970; O'Connell's Case, 11 Cl. & F. 155, 221; People v. Vermilyea, 7 Cow. (N. Y.) 108; People v. Mather, 4 Wend. (N. Y.) 229, 21 Am. Dec. 122; King v. Edmonds, 4 B. & A. 471, 474; Chitty, Criminal Law, 547. In the earlier of these cases, the facts were brought up by means of agreed statements, by written depositions, or by certificates of judges. And, on appeal, the review was not one of particular rulings, for reversal of the ultimate determination because of error in any one or more of them; it was a review of the decision, or, more accurately, a decision by the appellate court for itself, on the whole record, as on many motions in civil cases, proceedings upon a petition for mandamus tried before the court, or motions to quash indictments on other grounds. Baldwin v. Wright, 3 Gill, 241: Moreland v. Bowling, 3 Gill, 500; Howard v. Oppenheimer, 25 Md. 350; Palmer v. Hughes, 84 Md. 652, 36 A. 431; Hollowell v. Miller, 17 Md. 305; Bragunier v. Penn, 79 Md. 244, 246, 29 A. 12; Pope v. Whitridge, 110 Md. 468, 474, 73 A. 281; Darrin v. Hoff, 99 Md. 491, 493, 58 A. 196; Manger v. Board of State Medical Examiners, 90 Md. 659, 673, 45 A. 891; Deibert v. State, 150 Md. 687, 695, 133 A. 847. The Acts of 1872, chapter 316, now section 86 of article 5 of the Code, in permitting the use of bills of exceptions in criminal cases, gave no indication of an intention to make that the exclusive method of bringing up the facts, and we do not construe it to prohibit the continued use of the methods previously worked out. Moreover, the present case is peculiar, in that the facts brought up were not facts presented to the trial court for its consideration and decision; the court had the facts, and announced them to the parties. A practice of the court was in question, and the certification by the court of the facts of that practice seems closely analogous to certification of a rule of court. There is no departure from settled practice in it, and the time limit for bills of exceptions does not apply. The limit upon bringing up the facts in this manner is to be found only in that fixed for bringing the record to the court.

Reference was made in the oral argument to the requirement of rule 25 of this court that on appeals in criminal cases the records shall be transmitted forthwith after the appeals are taken; but the decisions in the cases of Luray v. State, 157 Md. 635, 640, 147 A. 599, and Brill v. State, 144 Md. 68, 124 A. 414, applying to appeals in criminal cases a clause of the statute, Code, art. 5, § 6, which allows three months for transmission of records on appeals from courts of law, prevent dismissal of the present appeal, because of delay in transmitting the record. The court must entertain the appeal, and review the rulings objected to.

When the case was called for trial, and on the day of the trial, the challenge to the array of the petit jurors on the panel in attendance was filed, in writing, on the defendant's behalf, and answered in writing on behalf of the state. First, it was objected that, whereas the provisions of the local law governing the make up of a petit jury panel required that the names should be selected from a special list of taxable inhabitants furnished by the clerk of the county commissioners and a special poll list prepared by the clerk of the supervisors of elections, there had been, in fact, no such lists prepared, and the names had been, according to custom in that jurisdiction, first selected by one of the judges from his contacts and information, as those of desirable residents of the county, and then compared with both the general tax books, and the poll list of the supervisors. The law required that men should be selected with reference to their intelligence, sobriety, and integrity, and therefore choice of men from contacts or reliable information was necessary at one stage in the process. Acts of 1929, c. 339, amended by Acts of 1931, c. 25. The objection seems to be, then, in part to the lack of lists specially prepared for the use of the judges, and in part to a reversal of the order outlined in the statute by selection of eligible men before the scanning of the poll list and the tax books, instead of scanning the lists first, and then making the choice from among the names on them. It seems to the court that the difference is not a material one, so far as compliance with the state law is concerned, and involves no substantial likelihood of unfairness, and should not be held to vitiate the trial in this instance, unless the statutes command it. And it was decided in the earlier case of Hollars v. State, 125 Md. 367, 93 A. 970, that the method followed in this case was sufficient. The statutory provisions in force at the time of that decision required the same use of the lists as is now required.

The objection to the selection of talesmen from the courtroom, on the ground of discrimination against negroes, is not supported sufficiently by the evidence, and requires little comment. In securing talesmen under the direction of the court, in pursuance of section 15 of article 51 of the Code the sheriff selected only white men, although it appears that there were a few colored men in the room. The court, in ordering one of the earlier additions of talesmen from the room, instructed the sheriff neither to summon, nor to refrain from summoning, any citizen or person eligible because of his color; and the sheriff, sworn as a witness, testified that he did not refrain from summoning any such persons. We could not find from the proceedings as reported that he did. Therefore, if there was any improper exclusion of negroes, it could have been only in the selection of the...