Whittemore v. State, 55.

• Court: Court of Appeals of Maryland
• Writing for the Court: BOND, C.J.
• Citation: 134 A. 322,151 Md. 309
• Parties: WHITTEMORE v. STATE.
• Docket Number: 55.
• Decision Date: 08 July 1926

134 A. 322

151 Md. 309

WHITTEMORE
v.
STATE.

No. 55.

Court of Appeals of Maryland

July 8, 1926

Appeal from Criminal Court of Baltimore City; Eugene O'Dunne, Judge.

"To be officially reported."

Richard Reese Whittemore was convicted of murder in the first degree, and he appeals. Affirmed.

Adkins, J., dissenting.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT, DIGGES, PARKE, and WALSH, JJ.

Edgar Allan Poe, of Baltimore, for appellant.

Herbert R. O'Conor, State's Atty., of Baltimore, and Thomas H. Robinson, Atty. Gen. (John Hubner Rice, Asst. Atty. Gen., and Rowland K. Adams, Deputy State's Atty., of Baltimore, on the brief), for the State.

BOND, C.J.

The appellant brings up for review by this court three rulings made by the trial court during the selection of a jury to try him on an indictment for murder. The charge was that in an escape from the Maryland State Penitentiary, where he had been confined under sentence for a previous crime, he murdered one of the guards, Robert H. Holtman; and upon the trial he was found by the jury to be guilty of murder in the first degree, and was sentenced to be hanged. The appellant does not contend that any of the jurors finally sworn were disqualified; he makes no objection to any of them; and no ruling on the admissibility of evidence or on any other matter arising during the course of the trial is here complained of. But the argument on the exceptions taken during the selection of the jury has entailed a new examination and study of the methods followed by the court, and requires an extended discussion of the ground of two exceptions especially.

The first exception is to a ruling that counsel for the appellant, Mr. Poe, who had been assigned by the court to defend the prisoner, could not question one of the prospective jurors, Harry Frank, on his voir dire, as to his age and his former business, in order to aid counsel in deciding whether to exclude that juryman by a peremptory challenge. On the preliminary printed list of jurors furnished to counsel, Harry Frank was described as "retired." The court examined all the jurors called, on their voir dire, to determine their qualifications, and, after the questioning of the first one called by a series of questions previously prepared, informed counsel that he would be glad to have them submit other questions that would affect the eligibility of the juror, and not for the purpose of enlightening counsel as to whether there should be a peremptory challenge. This distinction the court considered to be in accordance with decisions of the Court of Appeals in Handy v. State, 101 Md. 39, 60 A. 452, 109 Am. St. Rep. 558, and other cases. Accordingly, after Harry Frank had been examined on his voir dire, and Mr. Poe asked him his age, the court interposed to say that such questions did not touch upon a [134 A. 323] juror's eligibility, and could not be asked. The juror answered the question actually put to him, saying he was 49 years of age, but the discussion between the court and counsel, in addition to counsel's own assurance, makes it sufficiently plain that the ruling excluded a question as to this juror's former business, and any similar questions that the defense may have wished to ask of other prospective jurors to aid in determining whether to challenge peremptorily. It does not appear whether any other jurymen might, in fact, have been similarly questioned but for this ruling. The exception is, specifically, to the exclusion of questions as to age and former occupation of Harry Frank. The defense did not specify any cause of disqualification which might be disclosed by such questions. The particular juryman was ultimately excluded on a peremptory challenge by the defense.

In the case of Handy v. State, supra, this court had to consider exceptions to an examination of jurymen by the court itself rather than by counsel, and to the exclusion of a question whether a particular juryman was a married man, asked by the defense for aid in determining whether to challenge peremptorily, and the court affirmed the action of the trial court in each respect. We do not understand the appellant here to deny the propriety of the court's examining jurymen; that is clearly settled by the case cited (Handy v. State), and we see no reason to depart from that decision on the point, but, on the contrary, much reason for adhering to it, apart from its force as an authority. In other jurisdictions, too, this method is held to be one which the court may adopt in its discretion. Commonwealth v. Phelps, 209 Mass. 396, 412, 95 N.E. 868, Ann. Cas. 1912B, 566; Commonwealth v. Spencer, 212 Mass. 438, 444, 99 N.E. 266, Ann. Cas. 1913D, 552; Pinder v. State, 27 Fla. 370, 8 So. 837, 26 Am. St. Rep. 75; Carpenter v. Hyman, 67 W.Va. 4, 66 S.E. 1078, 20 Ann. Cas. 1310; Thompson & Merriam on Juries, § 241. The appellant does contend, however, that the decision in Handy v. State does not settle the point of the propriety of questions on behalf of one side or the other for aid in determining whether to exercise the right of peremptory challenge. But we think it does so settle the point, at least as it arose in that case. And our conclusion is that, while such questions as were excluded in this case would not in themselves offend against any rule, and, without error, might have been admitted, as they commonly are admitted, still, under the decision in Handy v. State, it was within the discretion of the trial court to exclude them as questions for peremptory challenges purely, and there was no error in the court's doing so.

In Handy v. State, the problem was treated rather as one of the propriety of questions not directed to any specified cause of disqualification of the juryman for partiality, prejudice, or other grounds rendering him unfit to sit in the case; that is to say, questions at large, and irrespective of any such disqualification. And, viewing the problem thus, there may, perhaps be less difference on principle found among the majority of decisions on the subject than has been supposed, for there seems to be widespread agreement on the principle that questions asked of jurymen should be clearly pertinent to some issue of eligibility. Thompson & Merriam on Juries,§§ 242 and 243; McDonald v. State, 172 Ind. 393, 88 N.E. 673, 139 Am. St. Rep. 383, 19 Ann. Cas. 766. What sort of challenge will be resorted to in a particular instance may be uncertain in advance of the examination. This court, in Handy v. State, quoted several decisions in English and American courts, opposing examinations of jurymen which they characterized as speculative, inquisitorial, catechizing, or fishing, to aid in deciding on peremptory challenges, and definitely decided that this was improper. Judge Pearce, writing the OPINION, said:

"We are aware that there are decisions to the contrary in other courts of equal authority and reputation, but such knowledge as we possess of the experience in practice under those decisions does not commend them to our adoption,"

--in this referring, presumably, to reports from other jurisdictions of seemingly unreasonable incumbering and prolongation of the work of securing a jury to proceed with trial. It is true, as counsel points out, that the court in Handy v. State held that whether the juryman questioned was or was not a married man was immaterial, so that the particular question asked was objectionable because of...