Loker v. State

• Decision Date: 01 September 1967
• Docket Number: No. 169,169
• Citation: 2 Md.App. 1,233 A.2d 342
• Parties: William M. LOKER, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 1

2 Md.App. 1

233 A.2d 342

William M. LOKER, Jr. v. STATE of Maryland.

No. 169.

Court of Special Appeals of Maryland.

Sept. 1, 1967.

Certiorari Granted Nov. 16, 1967.

James E. Hogan, Rockville, for appellant, Arthur J. Hilland, Ferdinand J. Mack James E. Hogan, Rockville, on brief.

Frank A. DeCosta, Jr., Asst. Atty. Gen., for appellee, Francis B. Burch, Atty. Gen., Frank A. DeCosta, Jr., Asst. Atty. Gen., Baltimore; Charles A. Norris, State's Atty., for St. Mary's County, Rockville, on brief.

Before ANDERSON, ORTH, and THOMPSON, JJ., and E. MACKALL CHILDS and WILLIAM W. TRAVERS, Special Judges.

ORTH, Judge.

On May 24, 1966 the appellant was convicted by a jury in the Circuit Court for St. Mary's County, Judge W. Albert Menchine presiding, of the crimes of embezzlement and grand larceny. He was sentenced to imprisonment for a term of five years on each offense, the sentences to run concurrently.

A motion to dismiss the indictment against the appellant was filed by him and denied by the lower court after hearing and before trial of the general issue. Maryland Rule, 725. The appellant contends on this appeal that the court erred in denying the motion with respect to the ground therein alleged that 'the Grand Jury which handed down said indictment was improperly, unlawfully and unconstitutionally selected, drawn and impaneled.' This contention encompasses two issues:

I. The indicting Grand Jury was selected and empaneled unconstitutionally.

II. The indicting Grand Jury was selected in violation of statutory requirements.

I

The legal basis for the contention that the Grand Jury was selected and empaneled unconstitutionally is predicated upon the decisions of the Court of Appeals in Schowgurow v. State, 240 Md. 121, 213 A.2d 475, decided October 11, 1965 and State v. Madison, 240 Md. 265, 213 A.2d 880. In Schowgurow, 240 Md. at page 131, 213 A.2d 475 the Court held that, under the decision of the Supreme Court in Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982, the provisions of the Maryland Constitution requiring demonstration of belief in God as qualification for service as a grand or petit juror were in violation of the Fourteenth Amendment to the federal constitution, and that any requirement of an oath as to such belief, or inquiry of prospective jurors, oral or written, as to whether they believe in a Supreme Being, was unconstitutional. The Court said, 240 Md. page 126, 213 A.2d page 479:

'Because of the requirement of the Maryland Constitution, ¹ it has been the duty of nisi prius judges to make belief in God a condition to service as a juror. There is a strong presumption that judges and court clerks, like other public officers, properly perform their duties. (Citations omitted.) * * * Moreover this Court takes judicial notice of the fact that it is and for many years has been a widespread practice in this State, not only for grand and petit jurors to be questioned as to their belief in God as part of their oath, but also for prospective jurors to be so questioned, orally or in written interrogations, before their names are placed on the jury lists, and that any person who does not state his belief in God is excluded.'

It pointed out that the exclusion of non-believers was not only authorized but demanded by the Maryland Constitution and that the resulting danger of abuse obviates any need to show individual prejudice.

The factual basis for the contention was that evidence produced at the hearing showed that from a list of 150 persons selected by the Honorable Phillip H. Dorsey, Jr., Associate Judge of the Circuit Court of the Seventh Judicial Circuit of Maryland, prior to September 2, 1965, 23 persons were selected as the Grand Jury for the September term, 1965 and 25 persons as the petit jury panel. After the decision in Schowgurow, the Grand Jury so selected was discharged. From the 102 persons remaining on the original list a new Grand Jury was selected. It was this latter Grand Jury that returned the indictment against the appellant on November 4, 1965. The appellant argues that if the list of 150 persons was compiled in compliance with the then prevailing law of Maryland, it necessarily follows that a Grand Jury selected from that panel was unconstitutionally chosen. The evidence is clear, however, that in compiling this list no person was excluded because he did not believe in the existence of God. Judge Dorsey, called by the appellant, testified, and the record disclsoes no evidence to the contrary, that, in selecting the 150 persons, a question with respect to belief 'in a supreme being' and 'in moral accountability for (a person's) conduct' was 'never asked of anyone.' In answer to a question, 'Did you have reference to it in your picking of these names?', he answered, 'Since I have been judge, I have never known of anyone who's name was suggested for the jury, being a nonbeliever, nor has it ever been mentioned so-far-as I can recall.' On cross-examination he was asked, 'Is there any form that a person fills out or signs or anything or taken by any person to be eligible to get on the list of 150 names?' He replied, 'NO, SIR, there is no form as-far-as I can recall. It has never been asked whether-or-not they believed in God, when the name was placed on the list of 150.' A person was included in the list 'without their knowing it.' It appears obvious that the first Grand Jury was discharged because an oath reflecting a belief in a Supreme Being had actually been administered to its members before they commenced their duties '* * * once it is established that the method of the grand jury's selection is unconstitutional, any accused indicted by such a jury has the right to have the indictment dismissed.' (emphasis supplied)

and not because the panel from which it was selected was unconstitutionally compiled. The 'strong presumption' stated in Schowgurow that prospective jurors were questioned as to their belief in God, was rebutted by direct evidence in the instant case. In reiterating Schowgurow in State v. Madison, supra, the Court said, 240 Md. page 273, 213 A.2d page 885:

The record is clear here that the indicting Grand Jury's selection with regard to the principles enunciated in Schowgurow was constitutional, and we so hold.

II

By the laws of this State, the selection of jurors in St. Mary's County is accomplished in three steps: (1) the compiling of a list of prospective jurors; (2) the selection of a panel of jurors; (3) the drawing of jurors from the panel. In the words of the trial court, these laws are 'a curious and somewhat abstruse admixture of general and local law,' and it is necessary for us to determine what statutes governed at the time of the selection of the grand jury in the instant case. The public local law was enacted as Chapter 329 of the Acts of 1896, and has not been specifically amended since. It is codified in the Code of Public Local Laws of St. Mary's County, Everstine (1965) §§ 88, 89 and 90, (Art. 19 of the Code of Public Local Laws of Maryland, (Flack), 1930). The relevant general laws are codified in The Annotated Code of the Public General Laws of Maryland, (1964 Replacement Volume), Art. 51, §§ 6, 9 and 10(f). Code, Art. 1, § 13 provides that where the public general law and the public local law are in conflict, the public local law shall prevail; but if the language of a general law clearly indicates, either expressly or by necessary implication, a purpose to repeal a local law by adoption of the general law, the local law must yield to that intention. Kirkwood v. Provident Savings Bank, 205 Md. 48, 106 A.2d 103. However, repeals by implication are not favored, and local laws are not repealed by general laws, unless such purpose is clearly indicated. Auto. Accep. Corp. v.

Univer. C.I.T. Credit Corp., 216 Md. 344, 139 A.2d 683. If two legislative acts can reasonably be construed together so as to give effect to both, such a construction is to be preferred. Montgomery County v. Bigelow, 196 Md. 413, 77 A.2d 164.

THE LIST OF PROSPECTIVE JURORS

Section 88 of the Code of Public Local Laws of St. Mary's County provides, in pertinent part, that it shall be the duty of the clerk to the County Commissioners to make out and file, annually at a time designated, with the clerk of the circuit court for that county a list of all male taxable residents of the county whose names appear on the tax books and who are not known to the clerk to be less than 25 nor more than 70 years of age. The provisions of the general law, Code, Art. 51, § 6 are substantially the same, although the designation of the taxable residents as 'male' was deleted by Chapter 376 of the Acts of 1963. Persons over 70 years of age are exempted by Code, Art. 51, § 3. Code, Art. 51, § 8, providing that lists from which jurors are drawn shall include names of men and women and that no person shall be disqualified for service as a juror by reason of sex, originally was not applicable to St. Mary's County. Chapter 20 of the Acts of 1955 eliminated St. Mary's County from the listed counties in which the section was not applicable and provided that in St. Mary's County jury duty for women shall be optional; any woman whose name is drawn for jury duty shall be excused therefrom upon request properly made. ² Section 88 of the local law was not expressly repealed by § 6 of the general law. Although St. Mary's County is not one of the counties to which § 6 is expressly made not applicable, § 6 states, 'Special local laws exist for Anne Arundel and St. Mary's counties,' and thus, it appears, does not repeal § 88 by implication. We think that, insofar as a list of taxable residents of St. Mary's County is necessary to the selection of jurors, § 88 of the local law is controlling as to its preparation, except that it must contain the names of both men and women, as we find that the limitation of taxable residents as 'male' was repealed by Chapter 20 of the Acts of 1955.

The...