State v. Mercer

Decision Date22 June 1905
Citation61 A. 220,101 Md. 535
CourtMaryland Court of Appeals

Appeal from Circuit Court, Frederick County; John C. Motter and Jas B. Henderson, Judges.

William C. Mercer was indicted for perjury, and, from an order sustaining his demurrer to the indictment, the state appeals. Reversed.


Wm. S Bryan, Jr., Atty.Gen., for the State.

Frank Pampel and Glenn H. Worthington, for appelle.


The appellee was indicted in the circuit court for Frederick county for perjury alleged to have been committed by making a false oath in certain proceedings of the orphans' court of that county. He filed a plea in abatement to the indictment, alleging that the grand jury which had indicted him was not legally constituted, because one of its members who is named in the plea was an atheist and infidel who did not believe in the existence of God nor in the truths of the Holy Scriptures. The state demurred to the plea, and the court sustained the demurrer. The traverser then moved to quash the indictment, and the court overruled his motion. He then demurred to the indictment and to each count of it, and the court sustained his demurrer and gave judgment in his favor, and the state appealed.

Under article 5, § 80, of Poe's Supp.Code Pub.Gen.Laws, as construed in Avirett's Case, 76 Md. 515, 25 A. 676, 987, and Floto's Case, 81 Md. 602, 32 A. 315, the whole record, including both demurrers, is brought up by the appeal.

We are of opinion that the traverser's plea in abatement was a bad one, because it presented a false issue by averring that the grand juror in question did not believe in the truths of the Holy Scriptures. No such belief is required as a qualification for a juror, and therefore to uphold such a plea might exclude a juror who was competent to serve as such. The demurrer to this plea was therefore properly sustained. Article 36 of the Declaration of Rights provides that no one otherwise competent shall be deemed incompetent as a witness or juror on account of his religious belief, "provided he believes in the existence of God and that under His dispensation such person will be held morally accountable for his acts and will be rewarded or punished therefor in this world or the world to come," but says nothing about a belief in the truths of the Holy Scriptures. If the plea had simply set up that the grand juror in question was not a qualified juror because he did not believe in the existence of God, and that under His dispensation he would be held morally accountable for his acts and be rewarded or punished therefor in this world or the world to come, it would have been a good plea, and the traverser would have been entitled to have the issue raised thereby tried. Our attention has not been called to any previous construction by this court of this article of the Declaration of Rights as applied to the competency of a juror. The case of the insensibility of a witness to the obligation of an oath by reason of his want of belief in God and His dispensation of rewards and punishments was considered in Arnd v. Amling, 53 Md. 192, and was again referred to in Judge Bryan's opinion in Du Puy v. Terminal Co., 82 Md. 444, 33 A. 889, 34 A. 910, but that is not the precise question before us now. We think, however, that the language used in article 36 is plain, and that its intention clearly was to afford to the community, in so far as they were affected by the exercise of the important powers conferred upon grand juries, the protection as to each juror of the sense of restraint and obligation arising from the belief that he would be held accountable for all of his transactions at the bar of divine justice. The provision, therefore, contained in the section, that no one should be deemed incompetent to serve as a juror by reason of his religious belief, provided he had the belief therein mentioned in the existence of God and His dispensation of rewards and punishments, in order to be given its proper and legitimate operation, must be construed to assert that no one shall be deemed competent as a juror who does not have that belief.

If any of the grand jurors who found the present indictment against the appellee were incompetent, it is clearly null and void. Clare v. State, 30 Md. 163; State v. Vincent, 91 Md. 718, 47 A. 1036, 52 L.R.A. 83. It is equally clear that it would have been proper for the traverser to have raised the issue of the competency of the grand juror by an appropriate plea in abatement. Clare v. State, supra; Avirett v. State, 76 Md. 537, 25 A. 676, 987.

The second demurrer filed by the traverser raised the question whether the indictment contained all of the requisite averments to constitute the crime of perjury. The essential features of perjury at common law are the willful making when under oath in a judicial proceeding or court of justice, of a false staetment material to the issue or point of inquiry. The offense consists in the swearing falsely and...

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