Turpin v. State

• Decision Date: 11 February 1881
• Citation: 55 Md. 462
• Parties: JOHN WESLEY TURPIN v. THE STATE OF MARYLAND.
• Court: Maryland Court of Appeals

55 Md. 462

JOHN WESLEY TURPIN v. THE STATE OF MARYLAND.

Court of Appeals of Maryland

February 11, 1881

APPEAL from the Circuit Court for Wicomico County.

The case is stated in the opinion of the Court.

The cause was argued before BARTOL, C.J., MILLER, ALVEY and ROBINSON, J. for the appellee, and submitted for the appellant.

Henry Page and John W. Crisfield, for the appellant.

John H. Handy and Charles J. M. Gwinn Attorney-General, for the appellee.

BARTOL C.J., delivered the opinion of the Court.

The appellant was indicted in the Circuit Court for Wicomico County for the murder of William F. Farrington, and was found guilty of murder in the second degree. During the trial he took six bills of exceptions to the rulings of the Court below, which are brought before us for review on this appeal.

First Exception.--One of the panel of jurors was called, and being sworn and examined upon his voir dire, it was determined by the Court that he was an impartial juror; the prisoner then by his counsel, moved the Court to require the State to exercise its right of peremptory challenge, before the prisoner should be required to exercise that right. But the Court overruled the motion, and required the prisoner to exercise his right of peremptory challenge before the State was called on to exercise its right; whereupon the prisoner excepted.

It is stated in the bill of exceptions that this ruling was in conformity to the uniform practice in that Court.

"Peremptory challenges are those which are made to the juror, without assigning any reason, and which the Courts are bound to respect." 1 Ch. Crim. L., 534 m.

"The right of peremptory challenge is deemed a most essential one to a prisoner, and is highly esteemed and protected in law. It is the right to exclude from the panel those who may be suspected of entertaining a prejudice against a party, where sufficient reasons cannot be given for their exclusion for cause." Proffat on Jury Trials, sec. 155.

This right of challenge in capital cases, was recognized in England for a long period of time, to the number of thirty-five. It has since been regulated there by various statutes, which need not be here referred to. In this State it has been secured to the prisoner by the Acts of 1737, ch. 2, 1744, ch. 20, 1751, ch. 14, 1809, ch. 138, sec. 13, 1816, ch. 45. By the Act of 1841, ch. 162, the right of peremptory challenge was extended to every person indicted for any crime or misdemeanor, the punishment whereof was confinement in the penitentiary. This Act was incorporated in the Code, Art. 50, sec. 15, which provides further that the accused shall not challenge more than twenty jurors without assigning cause. So stood the law before the Act of 1872, ch. 40. This was an act to repeal sec. 15, Art. 50, of the Code, and to re-enact the same with amendments, giving to the State the right of peremptory challenge in certain cases, and it provides "That the right of peremptory challenge shall be allowed to any person who shall be tried on presentment or indictment for any crime or misdemeanor, the punishment whereof, by law, is death, or confinement in the penitentiary, and to the State on the trial of such indictment or presentment; but the accused shall not challenge more than twenty, nor the State more than four jurors, without assigning cause."

Before this Act was passed, no right of peremptory challenge by the State existed in Maryland; except in the City of Baltimore under the Act of 1860, ch. 308, sec. 18. (2 Code, sec. 618.)

By the common law the prosecution in criminal cases could exercise on behalf of the crown peremptory challenges to an unlimited extent, without alleging any other reason than " quod non boni sunt pro rege." Proffat, sec. 159.

This was changed by the Statute of 33 Edw., 1, ch. 4, which while it took away from the crown, the unlimited right of peremptory challenge, was construed by the Courts to allow the prosecution a qualified right of peremptory challenge, which was exercised by allowing the prosecution the privilege of setting aside jurors when called, without assigning cause, until the panel was exhausted, when if the full number was obtained, such jurors were not called, but if not, their names were afterwards called on the general list. Reg. vs. Frost, 9 C. & P., 136; Mausel vs. The Queen, 8 E. & B., 54.

In Brandreth's case, the question arose whether the prisoner should be required to exercise his right of peremptory challenge, before the right of challenge was exercised by the crown, and after full argument, it was decided that according to the uniform practice, the right must first be exercised by the prisoner. 32 State Trials, 771, 774, 775.

A similar decision had been made in Layer's Case, 16 State Trials, 135.

We refer also to State vs. Bone, 7 Jones' Law R., 121.

In Jones vs. The State, 2 Blatchford, 475, the same question here presented arose under the Indiana Statute. The Circuit Court overruled the motion of the defendant that the State's Attorney should be required first to accept or reject the juror, before the defendant should be called on to make his election, and certain jurors after they had been accepted by the defendant, were set aside by the prosecuting attorney, which was alleged as error. The appellate Court in disposing of the question, said: "The only question on this point is who shall first make his challenge? If this were a new question, and we had it to settle, we should say that the State ought first to make her challenges, but as all the English authorities establish a different doctrine, and no American cases have been seen by us to authorize a different practice, we are bound for the present to sanction what the Circuit Court has done."

In State vs. Hays, 23 Missouri R., 287, a similar question arose. The Missouri statute like our act of 1872, allowed the accused twenty peremptory challenges and the State four, the prisoner moved that the State should be required to exercise its right of challenge first, this was overruled and the panel or list of jurors, was furnished to the State's attorney and to the prisoner, and each was required to exercise their right of peremptory challenge at the same time, by striking from the list of thirty-six jurors, the objectionable names, neither knowing which had been stricken by the other. This was alleged as error and cause of reversal. The Supreme Court speaking by Judge RYLAND said: "We do not think this such an error as would justify the court in reversing. The prisoner does not appear to have been deprived of any legal right. In what order the parties shall exercise this right, is a matter within the discretion of the Circuit Court. The simplest rule upon this subject, and one to which there would seem to be no objection, is that of requiring the parties to challenge as the jurors are called, and pronounced qualified, the plaintiff always speaking first. This rule I believe has been generally practiced, at least as far as my experience upon the Circuit Court extends, I never knew it deviated from, and that experience embraces a period of eighteen years. But as the rule adopted in this case deprives the prisoner of no legal right, and it does not appear that the discretion was exercised oppressively, it forms no ground for reversal. The right of peremptory challenges is a right to reject and not to select a jury."

In State vs. Steeley, 65 Missouri, 219, it was decided that "in criminal cases the State must announce her peremptory challenges of jurors, before the defendant can be required to announce his." But that decision was made under a statute, which in express terms, prescribed that course of proceeding.

The Act of 1872 does not prescribe the order in which the challenges shall be made, or direct whether the State or the prisoner shall first exercise the right. It would seem, therefore that the course of proceeding in this respect is left to the discretion of the Circuit Court. It appears from the statements of my brothers, who preside in the circuits, that the practice has not been uniform; while in several of the circuits the practice has been to require the State to challenge first; in the City of Baltimore, in the fourth circuit, and in the circuit from which this appeal comes, a different rule has prevailed. But it seems to us very clear that the action of the Circuit Court on this question can furnish no ground for reversal. The appellant has not been deprived of any legal right. His complaint is that by the ruling of the Court below, after having accepted certain jurors, they were challenged by the State, and he was thus deprived of jurors of his selection. But the law gives him the right only to reject, not to select the jurors. This subject was fully considered in the able opinion of Judge STORY in U. States vs. Marchant and Colson, 12 Wheaton, 480. There two parties were indicted jointly and claimed the right to sever, and be tried separately; this was denied, and this ruling was alleged as error. But the Court held it was not error to require them to be tried together. If tried in that way, it was conceded that each of the accused had the right to challenge the whole number allowed by statute, and it was contended on the part of the accused, that as one might desire to retain a juror who is challenged by the other, and if challenged by one he must be withdrawn as to both, and thus the right of selection would be virtually impaired. In answer to this argument the learned judge said: "But it does not appear to us that this reasoning can, upon the principles of the common law be supported. The right of peremptory challenge, is not of itself a right to select, but a right to reject jurors. It excludes from the panel those whom the prisoner objects...