Zimmerman v. State

Decision Date16 June 1948
Docket Number177.
Citation59 A.2d 675,191 Md. 7
PartiesZIMMERMAN v. STATE.
CourtMaryland Court of Appeals

Appeal from Criminal Court of Baltimore City; Joseph Sherbow, Judge.

Sam Zimmerman was convicted of murder in the first degree, and he appeals.

Affirmed.

J. Cookman Boyd, Jr., of Baltimore (Henry M. Decker Jr., of Baltimore, on the brief), for appellant.

Richard W. Case, Asst. Atty. Gen. (Hall Hammond, Atty. Gen., and J Bernard Wells, State's Atty., and Alan H. Murrell, Asst State's Atty., both of Baltimore, on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

HENDERSON Judge.

The appellant, a Negro, was tried and convicted of murder in the first degree, in the Criminal Court of Baltimore City, and sentenced to life imprisonment. Through his counsel, appointed by the court, he filed a motion to quash the indictment on the grounds that the Grand Jury which returned the indictment was not selected in accordance with the laws of Maryland, and that the method of selection violated the appellant's rights under the Federal Constitution. U.S.C.A.Const.Amend. 14. The appeal challenges the correctness of the court's ruling in refusing this motion, and also the rulings of the court in excluding evidence offered in support of the motion.

The Charter and Public Local Laws of Baltimore City (1938 Ed.) prescribe the method of selecting grand and petit jurors. § 687 provides: 'The Judges of the Supreme Bench of Baltimore City, or a majority of them, shall * * * select fairly and impartially, and by the exercise of their best judgment, the names of seven hundred and fifty persons, or thereabouts, qualified under the laws of this State to be grand and petit jurors in the City of Baltimore. * * *.' § 689 provides: 'The said list of persons, qualified under the laws of this State to be grand and petit jurors in the City of Baltimore, having been prepared as aforesaid, it shall be the duty of the said Judges of the Supreme Bench of Baltimore City, or a majority of them, * * * to select from said list the names of twenty-three persons, who shall constitute and be the grand jurors for the City of Baltimore for the ensuing term of said Criminal Court of Baltimore; * * *'. § 694 provides: 'The said Judges of the Supreme Bench * * * shall * * * after the selection of the grand juries for the City of Baltimore, as provided in Section 689, cause all the names selected by the Judges as aforesaid, remaining upon said list of qualified jurors, to be inscribed upon ballots, which * * * shall be placed by one of such Judges, with his own hands, on the day of said meeting and immediately before the drawing herein provided for, in a drawing wheel provided for that purpose by the Sheriff of Baltimore City, under the direction of said Judges; * * *.' From four to five hundred names are thus drawn by lot to serve upon the petit juries.

It may be noted that the Judges are directed to 'select' the Grand Jury. This provision was adopted by ch. 67 of the Acts of 1882. Prior to that time, the names were drawn from a wheel, the first twenty-three constituting the grand jury, a practice which prevails in most of the counties. Compare Code, Art. 51, § 10. We may assume that the change was designed to improve the quality of the grand juries and obtain the services of competent and impartial persons to exercise the important dual functions of passing upon all serious charges of crime and investigating the operation of the penal, law enforcement and other public institutions and agencies of a large urban community. After selection, the Grand Jury serves for a period of four months, whereas the petit juries serve for only three weeks.

As shown by the testimony, the practice has departed somewhat from the procedure outlined in the Statute. For many years a special jury clerk has been employed to prepare and keep up to date a jury service file, containing the names of some 18,000 eligible residents, who are carefully selected from tax lists, voting lists, the telephone book, the automobile book, and the City Directory. Persons so selected are summoned to appear before one of the Judges of the Supreme Bench, designated as Jury Judge, for examination as to their qualifications. Rule 1 of the Supreme Bench. Upon approval, their names, with all pertinent information, are put in a card index system. Prior to the commencement of each term of the criminal court, the jury clerk selects from the file and presents to the Supreme Bench a list of seven hundred and fifty names.

Each of the eleven Judges of the Supreme Bench also submits to the Chief Judge, prior to the commencement of each term, nominations of persons known to him to be qualified, which may vary in number from two to fifteen. This composite list, which varies from 42 to 62 names, is turned over to the jury clerk, who checks their age, occupation, residence, race, prior jury service and other like information. This list of nominations is then returned to the Chief Judge. Selections for the grand jury are made from this list, or from the list of 750 names above mentioned, by unanimous action of the Judges. In case any of the twenty three persons selected requests to be excused from serving, the request is customarily granted, and another meeting is called to fill the vacancy.

The appellant was indicted by the Grand Jury for the May Term, 1946. As originally selected, it contained the names of two Negroes, both of whom requested to be excused from serving. At a special meeting, a white man and a Negro were selected to fill the vacancies. All of the twenty-three persons who served had previously been listed in the jury service file. After selection, the names published contained no designation as to race, nor did the list of petit jurors drawn from the wheel. There was, however, a designation of race upon the original lists.

The appellant contends that the record shows that the statute was not complied with, because selection is customarily made from the list of nominations, rather than from the list of 750 names prescribed by the Statute. In every instance since 1940, it was shown that the names ultimately selected for Grand Jury service appeared on the list of nominations, although in a few instances the names also appeared on the list of 750. We think the objection is without merit.

§ 709 of the Charter provides that 'all the provisions * * * relating to the mode of drawing and summoning jurors shall be construed as directory merely, and no indictment * * * shall be quashed * * * because of any failure by the Judges, or the Clerks, or the Sheriff, to comply with the provisions of law relating to the drawing of jurors in the City of Baltimore; * * *.' Even in the absence of such a provision, this court has held that statutory provisions relating to the selection of a grand or petit jury are directory. King v. State, Md., 58 A.2d 663, No. 130 Oct. Term, 1947, and cases there cited. The statute imposes a duty of personal selection upon the Judges, and if, in the performance of that duty, an investigation and preparation is made in advance of the meeting and consideration of the larger list, we think there is substantial compliance with the statutory object. The statute, adopted prior to the time when the Supreme Bench established the jury service file under the supervision of the Jury Judge and Jury Clerk, contemplated personal selection by the Judges, or a majority of them, of each name upon the list of 750. Personal selection of the Grand Jury from a smaller list does not do violence to the statutory scheme, but makes that scheme more workable.

The appellant states in his brief that he does not 'seek to have the indictment * * * quashed solely because of noncompliance with the charter provisions,' but contends that non-compliance 'has been one of the factors permitting * * * discrimination against negroes.' We think, however, that in considering the question of discrimination, the answer cannot depend upon the mere size of the list from which the selection is made. The possibility of discrimination would seem to be present in either case.

The main point urged by the appellant is that the record shows an intentional and systematic limitation in the number of Negroes serving upon Grand Juries in Baltimore City, and that this constitutes discrimination, in violation of the equal protection clause of the 14th amendment to the Federal Constitution. There can be no doubt that where the evidence shows a total exclusion of negroes, prejudice may be inferred. Jackson v. State, 180 Md. 658, 26 A.2d 815; Lee v. State, 163 Md. 56, 161 A. 284; Lee v. State, 164 Md. 550, 165 A. 614, certiorari denied 290 U.S. 639, 54 S.Ct. 56, 78 L.Ed. 555. In the first Lee case the Court, speaking through Chief Judge Bond, said, 163 Md. page 66, 161 A. page 288, with reference to the selection of petit jurors by the Jury Judge in Baltimore County: 'His system of drawing jurors begins with a collection of names of white eligibles, and hence is confined from the beginning to the selection of white men. Only the white men appear to have been looked to for jurors. The evidence, with the long, unbroken absence of negroes from the juries selected, seems to show an established practice, confining selections to white men as effectually as if such a restriction were prescribed by statute. And the court has concluded that this, under the authorities, amounts to unconstitutional exclusion of negroes.' Citing Commonwealth of Virginia v. Rives, 100 U.S. 313, 25 L.Ed. 667, Neal v. Delaware, 103 U.S. 370, 26 L.Ed. 567, and Carter v. Texas, 177 U.S. 442, 20 S.Ct. 687, 44 L.Ed. 839. In the second Lee case, where the names of six Negroes were included in the panel of 200, it was held that...

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