Jones v. State

Per Curiam. The appellant was found guilty on August 2, 1966 by a jury in the Circuit Court for Prince George’s County of murder in the second degree, and sentenced to a term of eighteen years in ■the Maryland Penitentiary. Two questions of law are presented ■on this appeal: (1) whether appellant was denied his right to :an impartial'jury by the empaneling of four jurors sitting in this case who had sat six weeks previous in a separate criminal ■action in which the appellant was the accused, and (2) whether the trial court committed error in overruling appellant’s objection to, and subsequent motion to strike, certain testimony relating to his oral statement to police made at the time of his apprehension. The evidence adduced at trial indicated that one Andrew Dunston was shot in the head with a pistol while he was involved in an altercation with David Michael Leazer outside a ■dance hall in Eorestville, Maryland.

Appellant was identified by ■eyewitnesses as the man who fired the shot and left the scene in a 1957 Chevrolet automobile. Appellant was subsequently ^apprehended by police a short distance from the scene of the «hooting, whereupon he denied having been at the dance hall. Identification of the appellant as the man who had done the ⁴³¹ shooting was then made by a witness, and appellant was arrested. No question of the sufficiency of the evidence is presented on this appeal.

Conceding the proposition that appellant’s right to an impartial jury is guaranteed by both Article 21 of the Maryland Declaration of Rights, Bristow v. State, 242 Md. 283, 288 , and the Fourteenth Amendment to the Federal Constitution, Beck v. Washington, 369 U. S. 541 ; Irvin v. Dowd, 366 U. S. 717 , it is clear that the burden of proving that the jury was in fact not impartial is on the appellant. Bristow v. State, supra. Appellant does not, however, carry that burden by merely establishing that four of the jurors sitting on his trial had previously sat on a jury which convicted him of another unrelated offense. The general rule is that a juror is not necessarily incompetent because he has been a member of the jury on a former trial of the same accused for a different offense.

See, e.g., Ex Parte Craft, 138 So. 2d 266 (Ala. 1962); Bowling v. Commonwealth, 286 S. W. 2d 889 (Ky. 1955); Howell v. State, 255 S. W. 171 (Tex. 1923); Burford v. Commonwealth, 110 S. E. 428 (Va. 1922); State v. Riley, 151 S. E. 2d 308 (W. Va. 1966); Annotation: 6 A.L.R. 3d 546. The former trial of appellant on which the four jurors had sat was for storehouse