King v. State

Collins, J., delivered .the opinion of the Court. This is an appeal by John King, appellant, from a judgment and sentence to a fine of «$300 and costs in the •Circuit Court for St. Mary’s County, on conviction of violating the gaming laws by keeping a slot machine. The appellant alleges as error the overruling of his pleas in abatement: to the validity of the grand jury for the March Term and Special Term in June, 1947; and to the Array of the petit jury for September Term, 1947. He also alleges error in the rulings on testimony and on the argument to the jury.

He asserts that the selection of the jury panel, from which the grand jury was chosen, did not comply with the requirements of the jury law applicable to St. Mary’s County, because (1) the judge failed to select the jury panel from the poll books of the county and from the list of male taxable residents of the county furnished by the clerk to the county commissioners; (2) that he included in the j ury panel one hundred forty-nine names ³⁶⁵ of male citizens of the county rather than one hundred fifty names, because the name of J. Clyde Jarboe was twice placed on the jury panel, he being the same person in each instance; and (3) because the judge placed on the jury panel the name of J. Clyde Jarboe, firstly, from the first election district, and secondly, from the second election district, he being the same person and he being drawn as a member of the grand jury. Sections 84, 85, and 86 of Article 19 of the Public Local Laws of Maryland, 1930, governed the selection of jurors in St. Mary’s County. Section 84 of Article 19 provides substantially that the clerk to the county commissioners for St. Mary’s County shall make out and file with the clerk of the circuit court, at a time specified therein, a full and complete list of all the male taxable residents of said county whose names appear on the tax books thereof, and who are not known to said clerk to be less than twenty-five nor more than seventy years of age. It is provided by Section 85 of Article 19, in part, that the judge or judges of the Circuit Court for St. Mary’s County, not less than fifteen days before the commencement of each jury term of said court, in the presence of such members of the bar as shall think proper to attend, notice of the time and place having been first given to said members of the bar, to proceed to select from the list provided for by Section 84 of Article 19 and from the poll books of the several election districts of said county a panel to consist of one hundred fifty names of male citizens of said county with special reference to their intelligence, integrity, and sobriety, and without any reference to their political opinion, which said names shall be apportioned to the several election districts of said county in proportion to the number of registered voters and male taxpayers in each of said respective districts.

The judge shall append to the said list of one hundred fifty names a certificate certifying that said list has been selected in accordance with the provisions of the act. Article 19, Section. 86, pro ³⁶⁶ vides the method and procedure for drawing the jury from the names so selected. It is stipulated that of the one hundred fifty names composing this jury panel at least fifty of those names did not appear upon the tax list, and of those names which did not appear on the tax list about nineteen either did not appear upon the poll books or, if they did, they appeared on such books by different names and/or under different districts on the jury panel. Appellant claims that the stipulation definitely establishes that at least two names listed on the jury panel did not appear either on the tax list or the poll books, namely, George Dedderer and George H. Thompson.

George Dedderer, drawn on the petit jury, was excused because he was neither a taxpayer nor voter and George H. Thompson was not drawn on either the grand jury or petit jury. It therefore appears that the names of all the grand jurors who served in June, 1947, who presented and indicted the appellant, were either on the poll books or the assessment books of St. Mary’s County. It also appears that all of the petit jurors drawn for the September Term, 1947, when the accused was tried, either appeared on the poll books or assessment books with the exception of Bradford Reeves and George Dedderer. Bradford Reeves was challenged for cause, and this challenge allowed by the court, because he had sold his property prior to the time of the trial.

George Dedderer was excused by the court from service on the petit jury. It is therefore established that all members of the grand jury who indicted the accused either appeared on the poll books or the assessment books, and all members of the petit jury who tried the accused so appeared. By his first plea in abatement appellant alleged that the jury panel was not drawn from the poll books and the list of male taxable residents of St. Mary’s County. He contends that the jury statutes in plain and unequivocal language, stated what a judge must do in the selection and drawing of a jury to meet the requirements of ³⁶⁷ the law, and unless the judge complied with the provision of the statute in drawing the jury, that jury should, be stricken down.

Chief Judge William M. Loker, who drew the jury in this case, testified that he did not check both the poll books and the assessment records on these particular occasions because he never thought that it was necessary to check both. When asked the question: “On what date did you consult the poll books this time?” he answered: “This time? I said I did not do it this time.” He said, however, that in selecting the jury list: “I make inquiry about men of the county, and try to find out, the best I can, whether they are taxpayers, and if they are taxpayers or voters, find out if they are over 25 or under 70; and most important, what I try to find out about those people is their character, how they stand in the community, their reputation. When I get those names, I always inquired very particularly, unless I know myself, I look at the particular thing, then I check back, —in many instances I reckon some of them I may have forgotten,—but I check back, not more in the list of jurors than I do the assessment records, because the assessment record gives me the amount of the assessment, so that I can know how large it is, what kind of man he is,—that is to say, a frugal, industrious man, probably has a larger assessment.

Some will give the name of two or three brothers of the same family, and I look back in the assessment record to see which is the same, or ought to be the same, as the jury list, sometimes it is not; and I get it.” Many cases have come before this Court involving the drawing of juries. It has been held that in selecting the jury panel, it is not necessary to show that the names were upon both the tax list and poll books. The selection from either has been held sufficient compliance with the law. Downs v. State, 78 Md. 128, 131 , 26 A. 1005 ; State v. McNay, 100 Md. 622 , 60 A. 273 ; Hollars v. State, 125 Md. 367 , 93 A. 970 . ³⁶⁸ In State v. Keating 85 Md. 188 , 36 A. 840 , the Court held that the j udge must see that those selected are either on the tax list or poll books, but if he has satisfied himself as to that, he is not required to examine them at the time he completes his selection as that would be mere idle form.

The case of Hollars v. State, 125 Md. 367 , 93 A. 970 , supra, (decided 1915), involved the drawing of a jury under the Baltimore County jury law. That law required the clerk to furnish to the court a list of the taxable inhabitants, as in the case at bar. It further provided that notice of the time and place of the drawing be given and that at such time and place the judge or judges should select from that list of taxable inhabitants and from the poll books the jury panel. The list of taxable inhabitants was not furnished to the judge and there were no poll books in existence for him to consult.

The judge, however, had a list of voters prepared by a clerk in the office of the supervisors of election when he made his selection. It further appeared that there were on the jury panel the names of a number of persons which had been stricken from the poll books, one who had died, and some who had removed, but, with the exception of four names which were misspelled, it did not appear that any of these persons were drawn from the box as jurors, certainly not as grand jurors. In that case this Court held that 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 a fortiori if the name was never drawn from the box at all, he could in no way have been injured.” The Court, in that case, referred to the case of State v. Glascow, 59 Md. 209, 210 , at page 212, where the following was said: “The statute is to be regarded mainly as directory in its multifarious provisions; and unless any irregularity incident to carrying out its directions in good faith shall be shown to materially violate ³⁶⁹ it, or so affect the juries as to prejudice the rights of the citizen, these irregularities should-not be treated as fatal.” In Lee v. State, 163 Md. 56 , at pages 60 and 61, 161 A. 284 , at page 285, where the accused was charged with murder in the first degree and sentenced to death, Chief Judge Bond said: “When the case was called for trial, and on the day of the trial, the challenge to the array of the petit jurors on the panel in attendance was filed, in writing, on the defendant’s behalf, and answered in writing on behalf of the state. First, it was objected that, whereas the provisions of the local law governing the make up of a petit jury panel required that the names should be selected from a special list of taxable inhabitants furnished by the clerk of the county commissioners and a special poll list prepared by the clerk of the supervisors of elections, there had been, in fact, no such lists prepared, and the names had been, according to custom in that jurisdiction, first selected by one of the judges from his contacts and information, as those of