Jones v. State

Capper, J., delivered the opinion of the Court. Appellant was convicted in the Circuit Court for Dorchester County for selling a pint of whisky to one ¹⁴ Morris Stein in said county on or about April 23, 1944. He was sentenced to confinement for twelve months in the Maryland House of Correction, from which sentence he has appealed. The record contains twenty-nine exceptions, all of which, excepting the first, involve questions concerning testimony offered during the trial.

The first exception was taken to the action of the trial court in overruling a motion of appellant’s counsel to challenge the jury. When the case was called for trial, appellant’s counsel moved for a continuance in open Court, the entire panel of jurors being present. The State’s Attorney, within hearing of the jurors in reply to the motion, made the following statement: “They (referring to the counsel for the defendant) are afraid to try this case first because of the effect upon other cases.” Appellant’s attorneys immediately made a motion: “to challenge the jury as to the polls for cause before a list of the jury was handed to appellant’s counsel to strike.-” The Court then said: “I think it should go in the record that the statement dictated (meaning the statement of the State’s Attorney above-set forth) was not made in the presence of a sworn jury, but only in the presence of prospective jurors sitting in the Court Room, from which the jury had to be selected.” The Court overruled the motion. By this motion appellant’s counsel did not indicate that he had any other ground or reason for challenging the jury excepting the said remark of the State’s Attorney.

He did not claim that the jurors were in any manner prejudiced or biased against the defendant and did not request that they be sworn on their voir dire for the purpose of examining them about these matters. The learned Court below refused the motion to challenge and decided that the remark of the State’s Attorney was not sufficient cause for challenging the jurors, it having been made before any of the panel was sworn or selected. ¹⁵ We agree with the Court below on this point. It is not every ill-considered remark made by counsel, even during the progress of the trial, that is cause for challenge or mistrial. Dunlop v. United States, 165 U. S. 486 , 41 L. Ed. 799 ; Freud v. State, 129 Md. 636 , 99 A. 934 ; Dunn v. State, 140 Md. 163 , 117 A. 329 ; Callan v. State, 156 Md. 459 , 144 A. 350 We think the statement of the Court below to the effect that the State’s Attorney’s remark was not made in the presence of a sworn jury was sufficient warning to any of the jurors who may have heard it, to pay no