Parker v. State, 145

• Decision Date: 29 January 1962
• Docket Number: No. 145,145
• Citation: 227 Md. 468,177 A.2d 426
• Parties: Richard L. PARKER v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 468

227 Md. 468

177 A.2d 426

Richard L. PARKER v. STATE of Maryland.

No. 145.

Court of Appeals of Maryland.

Jan. 29, 1962.

Patrick L. Rogan, Jr., Salisbury (Vaughn E. Richardson, Salisbury, on the brief), for appellant.

Joseph S. Kaufman, Deputy Atty. Gen. (Thomas B. Finan, Atty. Gen., and Deniel T. Prettyman, State's Atty, for Worcester County, Snow Hill, on the brief), for appellee.

Before HAMMOND, HORNEY, MARBURY and SYBERT, JJ., and O. BOWIE DUCKETT, Special Judge.

HORNEY, Judge.

Claiming that he had been prejudiced by the manner in which the jury was selected and by the ruling which allowed the State to impeach one if its own witnesses, the defendant (Richard L. Parker) has appealed from the judgment entered on a verdict of guilty of murder in the first degree without capital punishment.

On the night of January 17, 1961, the defendant and the victim (Rena Mae Choquette) had an argument at a bar in Pocomoke City. Later another angry controversy took place between them on Clarke Street. Still later (shortly after 11:00 p. m.), while the victim was walking with another man and woman on Willow Street, the defendant approached the trio and shot the victim three times with a pistol. She died twelve days later. After the shooting, the defendant fled the scene but returned a short time later and voluntarily surrendered to the police.

(i)

At the trial, and while the jury was being selected, the prosecuting attorney, having exhausted the ten peremptory challenges allowed the State, sought permission, and, over the objection of the defendant, was permitted to withdraw the challenges to two prospective jurors the State had previously rejected, and to reexercise such challenges against two other prospective jurors that had been summoned as talesmen. When that had been done, the defendant, who had used only twelve of his twenty peremptory challenges, used two more of them (for a total of fourteen) to challenge the two prospective jurors as to whom the State had withdrawn its challenge. Thereafter, the selecting of a jury acceptable to both parties was continued and completed without further controversy, and without the defendant having to exhaust all of the peremptory challenges to which he was entitled.

At the argument in this Court, the defendant, even though he conceded that the jury sworn to try him was not incompetent, nevertheless, vigorously insisted that it was prejudicial error for the court to permit the State to withdraw a peremptory challenge as to a previously challenged juror and reexercise it against another prospective juror. Under the circumstances in this case, we think the error (if it was that) was not prejudicial.

Code (1957), Art. 51, § 24, provides, among other things, that 'the accused shall not challenge more than twenty nor the State more than ten jurors,' but the statute is silent as to when or in what circumstances such challenges may be exercised. It is obvious, however, as was pointed out in Turpin v. State, 55 Md. 462 (1881), that the privilege of challenging peremptorily is a right to reject a juror without the necessity of first showing cause and not a right to select a juror.

In Biddle v. State, 67 Md. 304, 10 A. 794 (1887), where the jurors were separately sworn as soon as they had been accepted by both parties and where the accused had used all of the peremptory challenges allocated to him, it was held that after a peremptory challenge had once been exercised in respect to a member of the regular panel, a party has no right to recall or withdraw the challenge for the purpose of peremptorily rejecting a more objectionable talesman who had been summoned and added to the panel of prospective jurors.

But in Rogers v. State, 89 Md. 424, 43 A. 922 (1899), and again in Whittemore v. State, 151 Md. 309, 134 A. 322 (1926), where the swearing of the respective jury was deferred until a full panel of twelve jurors had been obtained and where the State had no reason to challenge for cause and had not exhausted all of its challenges, it was held that a party has a right to continue to exercise his statutory right to peremptorily reject a juror, including those who had theretofore been selected and accepted by both parties, up to the time the jurors are sworn.

However, a case such as this, where the jury had not been sworn until after a panel of twelve jurors had been accepted by both parties and where the State (though not the defendant) had exhausted the peremptory challenges to which it was entitled, obviously presents a somewhat novel question, yet it is one which we need not answer at this time. For even if we assume, without deciding, that the principle of the Biddle case ought to be applied here--instead of the principle of the Rogers and Whittemore cases--we think it is clear that the defendant (who had not exhausted his challenges) was not prejudiced.

(ii)

The second and only other contention is that the court erroneously allowed the State to cross examine one of its own witnesses. A witness (James H. Young) called by the State had testified that the...