Kennard v. State

Offutt, J., delivered the opinion of the Court. John Kennard was presented, indicted, tried and convicted of bastardy in the Circuit Court for Harford County. From the judgment on that verdict he took this appeal. The proceeding originated in a presentment ⁵⁵² by the grand jury, and the defendant at the trial moved to quash the indictment in the ground that there had been no preliminary proceedings before a justice of the peace under the provisions of Code, art. 12.

But where proceedings involving a charge of bastardy are not begun until after the birth of the child, they may be begun either by the accusation of the mother before a justice of the peace, or by the accusation of a grand jury. Kelly v. State, 151 Md. 87, 91 , 133 A. 899 ; Code, art. 12, sec. 1, Acts 1939, ch. 182 sec. 4A. So the motion to quash was properly overruled. The case was tried before a jury.

At the conclusion of the trial a bailiff was sworn, the jury was committed to his care,'the jurors retired to consider their verdict, and the'court took a recess for one hour. While the jurors were deliberating the court “sent word” to them by the bailiff that when they reached a verdict they “could separate and get their dinners” and then come back and deliver the verdict. ■ They agreed upon a verdict, separated, and when the court reconvened returned to the jury box and announced that they were ready to return a verdict. Counsel for the defendant, who then for the first time learned that they had separated, objected to “taking the verdict” for these reasons: “1. Because the jury were allowed to separate and mingle with the general community, without being in the custody of the Bailiff, before they had rendered their verdict. “2.

Because the jury having been allowed to separate and mingle with the general community without being in the custody of the Bailiff, the Court had no power to bring them again together to take a verdict.” • The court, notwithstanding the separation and the objection of counsel, directed the clerk to take and record the verdict, and the jury thereupon returned a verdict of guilty. A motion for a new trial was filed and overruled, and the defendant then moved to arrest the judgment on the grounds that: ⁵⁵³ “1. Because there is no proper verdict in the case. “2. Because there is no verdict in the case. “3.

Because the jury were allowed to separate and mingle with the general community without being in the custody of the Bailiff, before they entered their verdict. “4. Because the jury having been allowed to separate and mingle with the general community, without being in the custody of the Bailiff, the Court had no power again to bring them together to take a verdict. “5. Because after the Bailiff had been sworn and the jury taken by him to their room to consider their verdict the Judge sent word by the Bailiff to the jury that when they had reached a verdict they could separate and get their dinners and they could come back to the jury box when they reconvened and give their verdict.” That motion was also overruled, and sentence imposed and judgment entered upon the verdict. The remaining question presented by the appeal is whether upon those facts the verdict of the jury was good in law.

Undoubtedly the better and the sounder practice, and one almost uniformly observed in this state in civil as well as in criminal cases, is to require a jury to whom a case has been committed to remain together in the custody of a judicial officer in some place appointed by the court until they are brought therefrom before the court to return their verdict, unless prior to their separation they have been given leave to seal a verdict, or have been discharged. Nevertheless the mere separation of the jury after the case has been given to them and before verdict does not, in misdemeanor cases, necessarily invalidate their verdict. Technically this is not a criminal proceeding but one which nevertheless has many of the incidents and elements of such a proceeding, and for the purposes of the question the offense may be treated as though it were a misdemeanor, for it certainly should not be classified with graver offences, such as felonies. ⁵⁵⁴ At common law the separation of the jury in criminal cases after they had retired to consider their .verdict and before they had reported or sealed it would have vitiated any verdict thereafter reported (64 C. J. 1010, 16 C. J. 1075, 16 R. C. L. “Jury,” sec. 116), and it has been said that until they had reached and reported a verdict they were “prisoners of the court.” Ibid. The purpose of the rule was first to prevent contamination of the jury by extraneous communications and improper influences, and second to coerce a verdict by withholding from the jurors their accustomed comforts and conveniences with the idea of making their confinement so unpleasant and irksome that they would be willing to end it as soon as possible.

Ibid. Accordingly it has been said: “The jury must be kept together without meat, drink, fire, or candle, till they are agreed. 24 E. 3.75, (b); Co. Lit. 227. b. If they agree not before the departure of the justices of gaol-delivery into another county, the sheriff must send them along in carts, and the judge may take and record their verdict in a foreign county; quaere, whether in such cases the session may be adjourned before, the verdict taken. 19 Assiz. 6. per Scot. 41 Assiz. 11.” 2 Hale’s Pleas of the Crown, 296. But in modern times the rigor of that rule has been. relaxed, certainly- in the trial of misdemeanors (2.

Wharton, Crim. Proc. sec. 1764; 2 Bishop, Crim. Proc. sec. 996; McKinney v. People, 2 Gilman (Ill.), 540, 43 Am. Dec. 65 , 80 note), and the rule approved .by what seems to be the weight of authority is that in cases of misdemeanor such a separation .will not vitiate the verdict unless it appears that the defendant Was prejudiced thereby.

Ibid. In Rex v. Kinnear, 2 B. & Ald. 460, 106 Eng. Rep. 434, it was held that the dispersion of .a jury, after the close of the Crown’s case in a trial of an indictment for conspiracy did not prevent the return of a valid verdict, but in Rex v. Ketteridge, [1915] 1 K. B. 467, where the defendant was indicted for rape, it was held that the separation of the jury, after the judge had sfimmed up was an irregularity which vitiated a verdict later returned. ⁵⁵⁵ And it is undeniable that the rule that in criminal cases the jury should not be permitted to separate after the case has been submitted to them has been applied more rigorously in the trial of felonies than of misdemeanors, although there is no harmony in the cases on any phase of the question. So, while it was said in Rex v. Ketteridge that “If a juror, after the judge has summed up, in any criminal trial separates himself from his colleagues and, not being under the control of the Court, converses or is in a position to converse with other persons, it is an irregularity which, in the opinion of the Court, renders the whole proceedings abortive, and the only course open to the Court is to discharge the jury and commence the procedings afresh,” there are American cases noted in Ann. Cas. 1914A, 738 which hold that while such a separation is an irregularity which creates a presumption of prejudice, it is rebuttable and does not, except in capital cases, necessarily require a new trial if it is shown that the defendant was not prejudiced.

Cases collected in highly useful annotations found in 34 A. L. R. 1115, and 79 A. L. R. 821, show that there is respectable support for each of many divergent and conflicting views of the effect of the separation of juries in criminal cases after submission and before verdict. For instance it has been held that it is within the discretion of the court to permit such separation, and that it has no such power (79 A. L. R. 836, 34 A. L. R. 1212), that where the separation is authorized by the court there is no presumption of prejudice but that the burden is on the defendant to show prejudice, that in such a case prejudice is presumed, and the burden is on the prosecution to overcome the presumption (34 A. L. R. 1214, 79 A. L. R. 837), that where the separation is not authorized by the court prejudice will not be presumed, that in such a case an irrebuttable presumption of prejudice arises (34 A. L. R. 1214), that separation of