State v. McNay
| Decision Date | 22 March 1905 |
| Citation | 60 A. 273,100 Md. 622 |
| Parties | STATE v. McNAY. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Prince George's County.
Edward McNay. Sr., was indicted for selling liquor on Sunday. From a judgment entered after overruling a demurrer to a plea in abatement, the state appeals. Reversed.
Wm. S Bryan, Atty.Gen., for appellant.
Joseph K. Roberts and Geo.B. Merrick, for appellee.
The appellee was indicted in the circuit court for Prince George's county for selling liquor on Sunday. To this indictment he filed a plea in abatement alleging "that the said indictment nor presentment were not made nor found by a legal or lawful grand inquest or grand jury of the state of Maryland, in and for Prince George's county" for three distinct reasons stated in the plea, viz.: First because the grand jury did not consist of 23 lawful jurors second, because the 200 persons from which the grand jury was drawn were not legally selected; and, third, because chapter 560, p. 954, of the Acts of 1904, under which the jury was drawn by jury commissioners appointed by the Governor, is unconstitutional. To this plea the state filed a general demurrer, which was overruled, and, no replication being filed, judgment was given against the state, and the indictment was quashed, from which judgment this appeal was taken.
The learned Attorney General argued that this plea was bad for duplicity, and, as that objection, if well founded, must prove fatal, it will be first considered. The authorities agree that all pleadings are double which contain several answers, whatever the class or quality of the answer, whether in abatement or in bar. Stephen on Pleading, p. 258; Gould on Pleading, c. 8, § 1; 7 Enc.Pl. and Pr. 238. Mr. Bishop, in his new Crim.Proc. vol. 1, § 432, states the rule thus "Alike in criminal and civil proceedings, duplicity consists in alleging for one single purpose or object two or more distinct grounds of complaint or defense when one alone would be effectual in law." Mr. Stephen, on page 242 (Tyler's Ed.), says that the meaning of this rule with respect to the declaration (or indictment) is "that it must not, in support of a single demand (or charge), allege several distinct matters made, by any one of which that demand (or charge) is sufficiently supported; and with respect to the subsequent pleadings the meaning is that none of them is to contain several distinct answers to that which preceded it, and the reason of the rule in each case is that such pleading tends to several issues in respect of a single claim." And again, on pages 245 and 246, he says that, although a plea may make distinct answers to such parts of a declaration as relate to different matters of claim or complaint, "none of the matters so alleged in a plea in abatement must be such as would alone be a sufficient answer to the whole," and he gives the following illustration: "The defendant pleaded in disability of the person of the plaintiff ten different outlawries adjudged against him, and it was held that the plea was ill for duplicity, because the plaintiff was disabled as well by one outlawry an by the whole ten." So here the grand jury would be as effectually shown to be an unlawfully constituted body by proof of any one of the matters pleaded, as of all, assuming all of these matters to be valid objections to its organization. For this reason we think this plea is bad for duplicity. At common law it would seem to be clear that demurrer is a proper mode of taking advantage of this defect. 1 Bishop's New Crim.Proc. § 442. Mr. Poe, in section 738 of his work on Pleading, calls attention to the fact that the act of 1888 omitted from section 10 of article 75 the words, "and that no one plea contain distinct matters of defense or reply," which were previously contained therein, and adds that since that act duplicity is no longer the subject of demurrer in this state. But in Stearns v. State, 81 Md. 341, 32 A. 282 (decided in 1895), an information for violation of the gambling act was held bad for duplicity, and we therefore hold this demurrer should have been sustained.
The questions sought to be raised by this plea, however, are important in themselves and as affecting the administration of the criminal law in Prince George's county, and we will therefore proceed to state our views in respect to them. The objections made are three in number: First, that the grand jury did not consist of 23 lawful jurors; second, that the 200 persons from whom they were drawn were not legally selected; third, that the law requiring the jury to be drawn by jury commissioners appointed by the Governor is unconstitutional. These will be considered in their inverse order.
1. At common law, jurors were selected by the sheriff in his discretion. Bacon's Abridgment, "Juries," B, B; 12 Enc.Pl. and Pr. 273; Thompson and Merriam on Juries, § 44. In this state the sheriff always made the selection of the panel after the common-law method until the act of 1867, p. 664, c. 329. Cooper v. State, 64 Md. 45, 20 A. 986. But this large discretion produced such abuses that the practice has been changed by statutes in most of the United States, the selection being now variously made, as stated by Thompson and Merriam (section 45), by town authorities, county courts, county commissioners, selectmen, supervisors, special boards, and jury commissioners. It is earnestly contended by the appellee that the sheriff's office is judicial in its nature, and that in selecting jurors he acted in a judicial capacity, and that the act of 1904, vesting that power and duty in the hands of jury commissioners appointed by the Governor, is "an infringement upon the prerogatives of the judicial power, and for that reason is unconstitutional and void." The sheriff, however, is in fact the executive officer of the court, as the clerk is its ministerial officer, and the court possessed no power and exercised no control whatever over the sheriff in the selection of jurors. Indeed, it was the absence of this power which led to the enactment in the various states of the statutes which revolutionized the practice as we have stated. If the selection of jurors had been considered as a judicial function which could not be delegated to executive officers specially designated for that purpose, the existence of so many statutes in the different states, establishing that practice, would be remarkable in itself, since the Constitutions of almost all the states provide in varying terms for the separation of the legislative, executive, and judicial powers of government; and it would be still more remarkable that, so far as we are informed by the argument, or have ourselves discovered, none of these statutes has been assailed upon that ground. In addition to the presumption of validity to be drawn from this concurrence of practice and authority in the states, the practice in the federal courts is the same, where the jurors are selected by two ministerial officers--the clerk of the court and a jury commissioner appointed by the judge. It is not material that one of these is an officer and the other an appointee of the court. Neither one can exercise any judicial power, original or delegated; and the judge can exert no power nor exercise any control over either in the performance of this duty. We cannot perceive any ground upon which the act of 1904 can be declared to be unconstitutional and void.
2. The plea stated that: "The jury commissioners did not select the list of 200 persons in whole, as provided by section 177a of article 17 of the Local Code as amended by Act 1904, c 560, but that the said list of 200 persons so certified to the court, from which the list of 48 names was afterwards to be drawn, was selected in part from lists furnished the said jury commissioners from persons in the several election districts of said county, contrary to law; and that by reason of such unlawful action on the part of said jury commissioners the said list of 48 names from which said grand jury was drawn was in part made up of incompetent and disqualified persons as jurors; and that certain of such persons, so suggested as jurors to said jury commissioners, and by them so selected as jurors, were chosen on said grand jury at the first day of the court, and that thereby the said grand jury as impaneled and sworn on the said first day of court, was not made up of qualified and competent persons legally qualified as grand jurors." This plea does not show what lists are referred to as furnished by persons in the several election districts. There is nothing to show that the names were not upon the tax lists or pollbooks or upon both; and in Downs v. State, 78 Md. 131, 26 A. 1005, the selection from either was held a sufficient compliance with the law. There is nothing in this plea to show that these names were not furnished to the jury...
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