Hommer v. State

Briscoe, J., delivered the opinion of the Court. The question in this case is a narrow one and arises upon a motion to strike out a judgment on an indictment for murder. The prisoner was tried before a jury in the Circuit Court for Allegany County, found guilty of murder in the first degree and sentenceed to be hanged. The motion was overruled and hence this appeal. ⁵⁶³ Briefly stated, the ground for the motion is, that the verdict of the jury was taken in the absence of the prisoner’s counsel from the court-room, whereby it is claimed that the prisoner was deprived of the right to a poll of the jury.

It is conceded that the trial was regular in every other respect and the conviction was in due form of law. The record contains none of the evidence bearing upon the guilt or innocence of the prisoner, and as this was a matter entirely for the Court and jury that tried the case, we are confined to the single question raised by the record. The principal facts are contained in an agreement of counsel to be found in the record. It is this : “It is agreed as a fact in this case that immediately after the jury had retired to deliberate upon their verdict that the attorneys for the prisoner left Court-house and did not ask to be sent for upon the return of the jury into Court, or leave any word as to where they or either of them would be found.

It is further agreed as a fact in the case, that Mr. McHenry, one of the prisoner’s counsel, upon the retiring of the jury, went to dinner at his residence located on the same street and within one hundred yards of the Court-house, and well known to the Court Clerk and Court officials as the residence of said McHenry; that said McHenry remained at his residence all the time after leaving the Court-house and the taking of the verdict, and could have reached the Court-room within a few minutes after being sent for or notice given ; but that no such word or notice was given him, and that he did not know of the return of the jury until after the jury had been discharged.” We have no doubt as to the question in this case, and are of .opinion that the ruling of the Court below was correct. “The prevailing practice in the Courts of this State, when a jury has agreed upon their verdict, the prisoner being present in Court, is to direct the verdict to be taken, in'the usual form, and if there is no request for a poll of the jury, to require the verdict thus taken to be recorded. The manifest object of a poll of the jury is to call on each juror to ⁵⁶⁴ answer for himself and in his own language.” In Ford v. State, 12 Md. 514 , it is said that when the jury be asked if they have agreed on their verdict and they respond that they have, and that foreman shall say for them, and the foreman, speaking for the whole panel, find a