Downs v. State

Fowler, J., delivered the opinion of the Court. This is a writ of error from the Circuit Court for St. Mary’s County, and the errors assigned are that the grand jury which found the indictment on which the appellant was tried and convicted was illegally drawn and constituted — first, because the Judge selected the one hundred and fifty names from a tax list furnished by the clerk of the County Commissioners, February 1st, 1893, when the same should have been selected from the list filed by the said clerk prior to the September Term, 1892, of said Court; and, second, because the Judge selected the said names from the duplicate registries of voters of the several election districts of St. Mary’s County, instead of from the poll books of the ¹³⁰ several election districts, filed in the clerk’s office of said ■Court after the last general election of 1892. While the provisions of our Code in reference to the drawing of juries are mandatory, yet we have always said that a substantial compliance is sufficient. Green vs. State, 59 Md., 123 ; Avirett vs. State, 76 Md., 510 . .

The tax list from which the grand jury was selected in this case may be assumed, to have been correct and complete in every respect, except as to the time of filing, for the plea in abatement does not allege any other defect, nor is there anything in the record to the contrary. Indeed the tax list which was used may have been for anything that appears in the case, an .exact reproduction ■of the one which, it is contended, should have been, but was not used. But in addition to this view, it would appear that the ■tax list which was in fact used by the Judge in selecting the names is the list which the law (Code, Art. 51, sec. 6,) designates. The clerk of the County Commissioners by the section just referred to is required to file with the clerk of the Circuit Court not less than .twenty days before the beginning of the second regular term of said Court after each and every general election, a fair and complete list of the male taxable inhabitants of the county not under twenty-five years of age.

The tax list used was filed with the clerk of the Court on the first day of February, 1893, which was more than twenty days before the beginning of the March Term of the Circuit Court for St. Mary’s County. It is