Parks v. State

³³⁹ Burke, J., delivered the ojnnion of the Court. On October 80, 1908, John Parks, Jr., and John Davis were jointly indicted by the Grand Jury of Worcester County for the crime of robbery. A severance was granted, and Davis was tried by a jury and convicted.” The appellant was subsequently tried, convicted and sentenced to be confined in the ^Maryland Penitentiary for the term of three yc-ars. The record before us contains two bills of exception.

The first seems to relate to the competency of the jurors selected to try the case, and the second relates to the refusal of the Court to admit certain evidence. The record shows that the jurors, who had tried the ease of Davis were called. Whereupon counsel for the accused objected to the competency of any of the jurors who had tried and convicted Davis to sit as jurors in the trial of the appellant, upon the ground that they were wholly disqualified having tried and convicted Davis for the same offense for which the appellant was with him jointly indicted. After this objection had been made, the record contains this statement: “But the Court overruled the said objection, and put the said jurymen who had found Davis ‘guilty’ one after another upon their voir dire.

To which ruling and decision the prisoner excepted, etc.” The record does npt show what was the result of the examination of the jurors, nor does it show that any of those objected to were accepted or sat in the trial of the case. If it be conceded that it was error in the Court to have examined them upon their voir. dire, it is not shown for the reason stated, that any harm was thereby done the appellant. It may well be that each of said jurors disqualified himself upon his examination. If such in fact were not the case, and if any of those who were objected to did sit in the trial of the appellant the record does not show it, and therefore, the question intended to be raised is not before us, as it does not appear by the record to have been decided by the lower Court. ³⁴⁰ There was serious error in the ruling in the second exception.

The prosecuting witness, Edward Mullen, who appears to have been the only witness produced on the part of the State, testified