Mills v. State

Page, J., delivered the opinion of the Court. The appellant was indicted for rape at the August Term, 1891, of the Circuit Court for Frederick County. He pleaded not guilty, and upon his suggestion and affidavit, the case was removed to the Circuit Court for Montgomery County. At the November Term of that Court, upon leave, he withdrew the plea of not guilty.

He thereupon, but without leave, filed a plea in abatement, which the State’s Attorney moved the Court not to receive. The Court refused to receive the plea, because it did not contain all of the facts in connection with the drawing of the jury, which had found the indictment against the appellant, unless the defendant would “incorporate the record of drawing of juries in Frederick County as part of said plea. ” The defendant, in his first and second reasons, assigns for error the ruling of the Court in thus refusing to receive the plea, and also in refusing to receive it unless the same were amended by incorporating the record of the drawing of said jurors. In the case of Cooper vs. State, 64 Md., 44 , ²⁷⁸ this Court has decided, that as a general rule, “after pleading in bar to a felony, it is too late to plead in abatement; the withdrawal of the plea of not guilty, and filing such a plea, being matter of favor or discretion with the Court. ” The following is then cited approvingly from 1 Chitty Criminal Law, 425: “When the defendant has any matter to plead in abatement, the proper time to introduce it, i§ before he pleads to the felony. But there are instances of his being'permitted as a matter of favor, after the plea of not guilty has been recorded, to withdraw it, and plead to the jurisdiction.” And again citing from Wharton Crim.

Plead, and Pr., sec. 426: “Without leave of the Court, which is granted only in very strong cases, the plea of not guilty cannot be withdrawn to let in a plea of abatement.” The plea, being therefore a “matter of favor” the Court had the right in its discretion to couple with its leave, such conditions as-it deemed proper; and, this being so, its action is not open to our review. The defendant then filed his plea, having first amended it, so as to incorporate in it the record of the drawing of the jurors in Frederick County. The plea further sets-forth that the names of Charles E. Cassell, Clinton Metcalf, and John E. W. Hargett, appeared upon the list of two hundred, from which the panel of forty-eight were-to be taken; that said names were also drawn from this-panel, and were among the number of those inserted in the venire facias, that, though said persons were not returned by the sheriff as “dead, sick, or otherwise unable-to attend Court,” or as absent, and not to be found, their names were not among the list of names of persons to-serve at the August Term of the Court, but in their stead were the names of Orlando L. Seiss, Milton Warner, and Oliver C. Warehime, who were afterwards drawn and served on the grand jury which found the indictment against the defendant. It also appears front ²⁷⁹ the plea, that Hargett, Metcalf, and Cassell were “excused” by the Judge, and their places were filled by the persons named above, whose names were drawn from the box according to the provisions of the law for filling vacancies.

To this plea the State demurred. The Court sustained the demurrer, and the defendant assigns this ruling of the Court as his third reason for error. There is nothing in the plea to show that the selection of the panel as originally drawn was not made with strict regularity. The provisions of the law of the State were also carefully complied with in all of the subsequent drawings, and the only error which the defendant now alleges, is found in the fact that three persons, whose names were drawn on the original panel of forty-eight, were excused by the Judge, and their places filled by others, whose names were drawn, according to the provisions of the law, from the box.

It is contended that the Judge had no power to do this,