State v. Madison

Citation240 Md. 265,213 A.2d 880
Decision Date21 October 1965
Docket NumberNo. 408,408
PartiesSTATE of Maryland v. Leon Dallas MADISON.
CourtCourt of Appeals of Maryland

George L. Russell, Jr., Baltimore, for appellee.

Before PRESCOTT, C. J., and HAMMOND, HORNEY, MARBURY, OPPENHEIMER and BARNES, JJ.

PER CURIAM.

For reasons to be stated in an opinion to be hereafter filed, it is ordered by a majority of the Court of Appeals of Maryland (Horney and Barnes, JJ., dissenting) this 21st day of October, 1965, that the order appealed from be, and it is hereby, affirmed.

OPINION

OPPENHEIMER, Judge.

In Schowgurow v. State, Md., 213 A.2d 475 (filed October 11, 1965) we held that because of the decision of the Supreme Court of the United States in Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961), reversing the decision of this Court, the provision of Article 36 of the Maryland Declaration of Rights requiring demonstration of belief in God as a qualification for service as a grand or petit juror was in violation of the Fourteenth Amendment to the United States Constitution. We held, further, that our decision was not to apply retroactively except for convictions which had not become final before rendition of our opinion. In this case, Madison had been indicted in Baltimore City, for statutory rape, by a grand jury which, it has been stipulated, was impaneled from persons who, as a condition of their service as jurors, were required to show their belief in the existence of God. Madison pled not guilty. He had not been tried at the time our opinion in Schowgurow was rendered. He moved to dismiss the indicthim. Madison is a member of the Apostolic faith who believes in the existence of a Supreme Being. Schowgurow was a Buddhist whose religion does not teach that belief. The State contends that Madison is not entitled to question the validity of the indictment because he is not a member of the class unconstitutionally excluded from the grand jury which indicted him.

Arguments on the motion were had before Judge O'Donnell in the Criminal Court of Baltimore. He granted the motion, the State appealed, and because of the importance of the case in the administration of justice in Maryland, with the consent of the parties, we heard the appeal within a week. After argument, we affirmed Judge O'Donnell's dismissal of the indictment by per curiam order. The reasons for our order follow.

In his clear and thorough oral opinion, Judge O'Donnell pointed out that, as a result of Schowgurow, under the decisions of the Supreme Court, the grand jury which indicted Madison was not selected in accordance with law; that the unlawful method of its selection was not a mere 'harmless irregularity' but a violation of the Federal Constitution; and that, under our basic law, Madison's timely right to object need not have any ground other than the fact that he was indicted by that grand jury. We agree.

Supreme Court decisions requiring that the defendant be a member of the excluded class in order to have standing to attack the constitutionality of the method of jury selection under a law non-discriminatory on its face are not here in point. 1 In Schowgurow, we pointed out that, in such cases, 'the question was whether, under a law, nondiscriminatory on its face, through administration or practice, there had been exclusion as a matter of fact. Here, there has been systematic exclusion for over a century by the mandate of the Maryland Constitution.'

Where, as here the unconstitutional discrimination is an integral part of the governing law, a defendant in a criminal case whose conviction has not become final is not required to show that he is prejudiced by the application of the law. Every person accused of crime has the right to be tried under what has been determined to be the law of the land. In Schowgurow, the State, as here, contended there had been no showing of actual prejudice. We held that where the system of jury selection on its face provides for illegal discrimination and exclusion, an actual showing of prejudice is unnecessary. It is the danger of abuse resulting from the method of selection which renders it unconstitutional. We 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, under the decisions of the Supreme Court obviates any need to show individual prejudice.

Almost a century ago, this Court held that, when the method of selection of a grand jury is clearly invalid, the challenge of a defendant to his indictment by that body must be sustained, without any showing of prejudice. Clare v. State, 30 Md. 163, 164 (1869). In that case, the defendant pleaded in abatement that the mandates of the law had not been followed in the selection of the grand jury, because its members had been selected, not by the judges as the law required, but by a court clerk. The lower court found these allegations to be factually correct, but held they were mere informalities, not fatal defects. The pleas were overruled and the defendant was convicted. On appeal, we reversed the judgment of conviction, holding that the lower court erred in overruling the pleas. The defendant, Clare, had not alleged or proved any specific prejudice as to him in the unlawful method of selection. We said, however:

'Under any government of law the trial of persons accused of crime, from its commencement to the conclusion, should be serupulously conducted according to the requirements of the law. Not only the sacred administration of public and private justice, but the good order of the community, the security and protection of life, liberty and property, cannot be preserved, except by the inflexible maintenance and impartial enforcement of the statutory, as well as the fundamental laws of the land.' 30 Md. at 178.

In State v. Vincent, 91 Md. 718, 47 A. 1036, 52 L.R.A. 83 (1900), the appellee was indicted for perjury. He demurred to the indictment, alleging, inter alia, that the indictment showed on its face that the grand jury was composed of only 22 persons, when the law required 23 members. The lower court sustained the demurrer and quashed the indictment, and, on appeal, we affirmed. In Vincent, as in Clare, there was no allegation or showing of individual prejudice to the person indicted. We held that the invalid omission of the twenty-third juror of itself created a presumption of prejudice, and quoted the statement in Clare that government under law requires that the trial of persons accused of crime be conducted according to the law of the land.

In Walter v. State of Indiana, 208 Ind. 231, 195 N.E. 268, 98 A.L.R. 607 (1935), the appellant had been convicted of embezzlement. He had unsuccessfully challenged the array of the jury which tried him on the ground that the commissioners who selected the names to be drawn as jurors had purposely and intentionally excluded the names of women. The state statute required that the names be selected from the names of all qualified voters, which the court construed to mean there could be no exclusion because of sex. The exclusion of women by the jury commissioners was admitted. The Supreme Court of Indiana reversed the judgment; it held that the lower court erred in overruling the challenge to the array, even though the appellant was not a member of the class improperly excluded, and even though he showed no specific prejudice. The court said:

'A jury not organized in accordance with the statute is an unlawful jury, and in support of a challenge it is not necessary to show that the members of the jury are not qualified jurors * * *

'It does not suffice to say that appellant cannot show that his substantial rights were impaired, or that the jurors were biased or prejudiced against him, or that he did not have a fair trial * * * This right [the appellant's right to have the jury selected without illegal exclusion of any class] may not legally be denied, and if it is denied we must presume that the defendant was prejudiced thereby.' 208 Ind. at 236-237, 195 N.E. at 270-271.

Walter was cited with approval in Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946). In that case, a civil action for damages had been brought in a United States District Court. The petitioner, a salesman, moved to strike the entire jury panel on the ground that the jury commissioners had deliberately and intentionally excluded from the jury lists all persons who worked for a daily wage. The exclusion was admitted, but the lower court denied the challenge, and the jury returned a verdict for the respondent. On appeal, the Supreme Court reversed on the ground that petitioner's motion to strike the panel should have been granted. The Court acted in the exercise of its power of supervision over the administration of justice in the federal courts. 2 It said, 'On that basis it becomes unnecessary to determine whether the petitioner was in any way prejudiced by the wrongful exclusion or whether he was one of the excluded class.' 328 U.S. at 225, 66 S.Ct. at 988.

In Ballard v. United States, 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181 (1946), the petitioners had been indicted and convicted in a District Court for using and conspiring to use the mails to defraud. Both the grand and petit juries had been drawn from panels from which women admittedly had been systematically excluded. The defendants had duly moved to quash the indictments and to challenge the array of petit jurors. The Court reversed the convictions, acting, as in Thiel, in the exercise of its power of supervision over the administration of justice in the federal courts. In its opinion, the Court said that:

'[R]eversible error does not depend on a showing of prejudice in an individual case. The evil lies in the admitted exclusion of an eligible class or group in the...

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