Hollars v. State

Stockbridge, J., delivered the opinion of the Court. Joseph Hollars, a duly licensed dealer in spirituous and fermented liquors, was indicted by a Grand Jury for Baltimore County, upon the charge that he had violated the liquor laws of that county (Act of 1908, Chapter 195) by the sale of beer upon Sunday. Through his counsel he moved to quash the indictment on the ground that the Grand Jury, by which the indictment was found, had been improperly constituted, and that the defects were of such a nature as to render 'any indictment by that body null and void. The motion to quash being overruled, upon trial, Hollars was found guilty and sentenced to pay a fine of three hundred dollars.

This appeal, which is taken from that judgment, raises the question of the correctness of the ruling of the Court in refusing to quash the indictment. That the motion to quash was a proper method by which to call in question the legality of the organization of a Grand Jury has been abundantly settled. Cooper v. State, 64 Md. 44 ; U. S. v. Gale, 109 U. S. 65 . The reasons for which the Circuit Court for Baltimore County was asked to quash the indictment, and which are ³⁶⁹ relied upon now, all relate to the composition of the Grand Jury by which the indictment was found.

The record in the case is not as full or explicit with regard to some of the matters involved as was to have been desired, but this Court ■ can deal only with that which appears -in the record, and the natural and legal intendment to be drawn from that which does appear there. One of the grounds upon which the indictment is assailed is that Henry H. Grenninger, one of the Grand Jurors by whom the indictment was returned, was not on the list of two hundred names filed in the office of the clerk of the Circuit Court from which the jurors for that term were selected, nor was his name at any time placed in or drawn from the box from which the names of persons for the jury for said term were drawn. Erom the answer filed on behalf of the State, it appears that by an error on the part of a clerk in the office of the Supervisors of Elections the name of Harry ÜST. Granger was furnished to the County Commissioners, and by them forwarded to the clerk of the Circuit Court; that the clerk of the Circuit Court placed the name of Harry U. Granger in the box, and that his name was drawn as one of the Grand Jurors; that after the drawing had been made the error was discovered by the Court and the sheriff directed to summon Henry H. Grenninger, and that “the said Harry H. Grenninger was the identical person intended by the Court.” This answer of the State was demurred to by the traverser, and the effect of that demurrer was necessarily to admit the facts set out in the answer.

This would bring the case under the rule laid down in the Case of a Juryman, 12 East. 231, in which R. Curry had responded to the name drawn of J. Curry, and in the case of Roe v. Devys, Cro. Cases, Temp. Charles, 563, where a juryman named Samuel was impaneled and sworn by the name of Daniel, but in neither case was the error held to invalidate the action of the jury. These cases were approved and followed in this State in Munshower v. ³⁷⁰ State, 56 Md. 514 , where in a murder case there had been an error in the middle name of one of the jurors, the name as drawn from the box being Joseph H. Brown, and he was designated on the panel as Joseph B. Brown.

From these eases and others that might be cited, it is clear that a clerical error either in an initial or in a name itself, will not vitiate a verdict or an indictment where the person serving on the Grand Jury or impaneled on a petit jury is the person intended by the Court to have been selected, and no prejudice has resulted to the accused. U. S. v. Reed, 2 Blatch. 435 ; Fed. Cas. 16134. The motion to quash does not allege anything prejudicial to the accused resulting from the incorrectness of the name placed in the jury box, and by the demurrer the traverser admits that Henry H. Grenninger was the identical person intended by the Court under the name of Harry H. Granger. Ho sufficient ground for the granting of the motion, therefore, can be predicated upon this ground.

A second ground of attack upon the indictment is an error in the names of Stephen G. Rawlings, Mercer B. Porter and ■Jarrett Lee. In each instance the error complained of was alleged in the answer, and admitted in the replication, to have been of a clerical nature, and what has been said with regard to the mistake in the name of Grenninger sufficiently covers all of these cases . A further ground of attack is that John C. Felter, one of the Grand Jurors, was under the age of twenty-five years. The Code, Art. 51, sec. 1, provides, “that no person shall be selected and placed upon a panel as a juror who shall not have arrived at the age of twenty-five year's.” The appellant insists that this language is mandatory, and inasmuch as Felter was under twenty-five, that any indictment found by a Grand Jury of which he was a member is necessarily null and void.

The third section of the same article declares all persons over seventy years of age and delegates^ coroners, constables, school masters and pharmacists exempt. In construing these provisions this Court has heretofore held with ³⁷¹ regard to section 3 that the language was directory rather than mandatory, and in Green v. State, 59 Aid. 123, Judge Irving, speaking for this Court, dealt with both section 1 and section 3, in the following language: “In respect to the direction about age the weight of authority is strongly in support of the doctrine, that the duty imposed on the clerk of the Commissioners about the list of male taxables, not known to him to be under twenty-five years of age and the judge in respect to the selection of persons from the box over twenty-five and under seventy, is directory only. The law requires of them, of course, the honest exercise of their judgment respectively as to the age of persons put on the list, or placed in the box, but it is impossible for the clerk to know with absolute certainty who is under and’who is over twenty-five years of age. The statute provides no method of ascertainment, he is only directed to exclude such persons from the list as are known to him to be under twenty-five.

All over that age he is to put on * * A There can be no doubt that a wilful disregard of duty in this particular would be punishable, but a simple mistake can not and ought not to affect the validity of the list which he makes for the Court’s guidance. Where the jury is selected and drawn it would be impossible for the judge to know with certainty whether all the persons he selects for the box are under seventy or over twenty-five. Ascertainment at the time of drawing and selecting is impracticable and not provided for. His judgment is his guide.

If the judge makes a mistake the statute directs how it may be corrected, and expressly declares it shall not vitiate the drawing.” It is true that in the Green Case the endeavor to set the verdict aside upon the ground of age, was held to come too late, but the language quoted is clearly indicative of the view of the Court as to the proper construction to be placed upon the statute. In the case of Johns v. Hodges, 60 Md. 215 , a verdict was rendered by a jury, two members of which were under the age of twenty-five years, and a motion for a new trial in ³⁷² that case was made upon the ground of the non-age of these two jurors. The decision virtually turned upon the time when the objection was made, and that as it was not made until after verdict, it was too late to be availed of, but in the course of the opinion occurs the following' language, bearing upon the question now being considered. “Under our present jury system while the law aims to exclude persons under twenty-five years of age from serving-on juries, from the nature of the methods prescribed by the statute for drawing a jury, no certain means are provided for the absolute exclusion of such persons. The presumption arises, therefore, not that the officers charged with the duty of preparing the lists have wholly succeeded in securing those free from all statutory disability, but that they have succeeded so far as diligence and good faith within the scope of their opportunities have enabled them to do so.” In the light of these decisions, this Court must hold that the statute, section 1 of Article 51 is directory merely, and that to invalidate an indictment upon the ground of non-age it must be made to appear to the Court that a traverser has been prejudiced by reason of the non-age of the juror.

It further appears from the pleadings in this case that there were in the box the names of a number of persons which had been stricken from the poll book in October, 1913, one at least who had died, and some who had removed, but with the exception of the names mentioned it does not appear that any of these persons were drawn from the box as jurors, certainly none upon the Grand Jury, and the presence in the box of a name which perhaps should not have been there, could not operate in any way to the detriment of the traverser if he was not upon the Grand Jury, and «■ fortiori if the name was never drawn from the box at all, he could in no way have been injured. In many of the counties of this State there are local laws in force with regard to the procedure for the drawing of a jury, but for Baltimore County there has been no such local ³⁷³ legislation, and the composition of juries is entirely governed by the provisions of the general law. By section 6 of Article 51 it is made the duty of the clerk of the County Commissioners to make out and file with the clerk of the Circuit Court for the County, not less than twenty days before the beginning of the second regular term of said Court after each and every general election, a