Young v. State

• Decision Date: 11 January 1900
• Parties: YOUNG et al. v. STATE.
• Court: Maryland Court of Appeals

45 A. 531

90 Md. 579

YOUNG et al. v. STATE.

Court of Appeals of Maryland

January 11, 1900

Appeal from circuit court, Harford county; James D. Watters, Judge.

Joseph Young and Joseph Bush, alias Barrett, were convicted of murder, and they appeal. Affirmed.

Argued before MCSHERRY, C.J., and FOWLER, PAGE, PEARCE, and SCHMUCKER, JJ.

Harold Scarboro and Gilbert S. Hawkins, for appellants. Atty. Gen Gaither and Walter W. Preston, for the State.

PAGE J.

The appellants were indicted for murder in the circuit court of Harford county. At the trial the several jurors, having been sworn on their voir dire, declared they had not formed or expressed any opinion as to the guilt or innocence of the prisoners: After the whole panel had been sworn, and the state had produced a part of its evidence, the counsel for the defense suggested to the court that it had just come to their knowledge that the eleventh juror on the panel, J Pearl Wilson, a talesman summoned by the sheriff in this case (who had also summoned the coroner's jury of inquest) had served as foreman of that jury, and had "rendered a verdict over his hand and seal as foreman as aforesaid." The finding of the coroner's jury thus referred to was that the deceased "came to his death from the effects of a pistol-shot wound, *** and we believe from the evidence that Joseph Young and Joseph Bush were implicated in the shooting." It appears that the coroner swore 19 witnesses, and their testimony is fully set out in the record. The counsel for the prisoners, therefore, claiming that the juror Wilson, having heard such evidence and rendered such a verdict, must necessarily be biased and disqualified, challenged the array, and moved that the court discharge the panel. The court overruled the challenge and the motion to discharge the panel, and permitted the trial to proceed, whereupon the defendants excepted. It must be observed that the challenge is to the array, and to discharge the panel. Such a challenge may be raised only when there is some objection affecting the constitution of the whole panel. 3 Bl. Comm. 359; 1 Bish. Cr. Proc. § 744; 12 Enc. Pl. & Prac. p. 418, and authorities there cited. The proper method of objecting to the qualifications of the juror in this case was by a challenge to the polls for cause. Such a challenge may be made properly when there is some disqualification attaching to a particular juror, and not to the constitution of the whole panel. 1 Bish. Cr. Proc., supra. If, therefore this case be regarded according to the strict letter of the exception, the questions argued by the respective counsel at the hearing would not be before us. Let it, however, be taken as a challenge to the poll for cause. In respect to this, the general practice that prevails here, and in most, if not all of the courts having our system of jurisprudence, is that challenges for cause must be made before the juror is sworn; and that rule is without exception in all cases where the party objecting to the qualifications of the juror had knowledge at that time of the circumstances tending to disqualify, or could have known of them by the exercise of proper diligence in making inquiries or otherwise; and if, with such knowledge, express or implied, he fails to make his challenge before the juror is sworn, it must be deemed to have been waived, no matter how good his cause of challenge may be. Reg. v. Frost, 9 Car. & P. 129; Johns v. Hodges, 60 Md. 222, 223; Busey v. State, 85 Md. 118, 36 A. 257; Com. v. Knapp, 10 Pick. 477; Gillooley v. State, 58 Ind. 182; 1

Bish. Cr. Proc. § 932; Green v. State, 59 Md. 123; 12 Enc. Pl. & Prac. tit. "Jury," p. 437. To enable the court to entertain an objection to the qualifications of a juror after he has been impaneled and sworn, and the trial has actually been begun by the production of evidence, it at least must be proven that the party making the objection, at the proper time for tendering challenges, did not actually know, and might not have known, the particular circumstances upon which rests the alleged disqualification. Thomp. & M. Jur. § 274 note 2; Johns v. Hodges, supra. In this case we have not the slightest proof that the defendants were not fully aware of the fact that Wilson had served on the coroner's jury. They were present at the hearing before the jury, as also were their counsel. They witnessed the impaneling of the jury, and must have observed the foreman, who occupied the most conspicuous position of all the jurors. There certainly is not the slightest reason why they might not have known that he was one of the jurors, from their own recollections; and, if that was not sufficient, nothing prevented an examination of the list of jurors before the coroner, or an actual inquiry of Wilson when he was on his voir dire. Apart, also, from all this, there is no allegation in the record that the defendants did not have such knowledge at the time when Wilson was brought to the book. The exceptions do, indeed, show that it was after the trial had begun that the knowledge of the alleged disqualification first came to their attorneys, but there is nothing in the record as to when it first came to the knowledge of the defendants. Nor can ignorance of the fact be imputed to them as a presumption of law or of fact. Having been present at the hearing before the coroner, the presumptions would rather tend to prove that when Wilson was called as a juror they knew of his service on the coroner's jury. And, whether this be correct or not, it cannot be questioned that even a reasonable diligence in making proper inquiry would have enabled them to obtain possession of all the facts. If his presence on the jury resulted detrimentally to justice, the court, after the verdict, was fully empowered to grant a new trial;...