Pearson v. State

Gilbert, J., delivered the opinion of the Court. This appeal involves the right to challenge peremptorily prospective jurors. Such right has been conferred upon an accused and the State by the common law, case law, statute and rule of court. Art. 51, § 15 of the Annotated Code of Maryland (1968 Repl.

Vol.) provides: “In all criminal cases called for trial in any court in which a jury shall be necessary, ac ⁴⁶⁴ cording to the Constitution and laws of this State, other than cases in which the offense charged is punishable by death or confinement in the penitentiary, twenty persons from the panel of petit jurors shall be drawn by ballot by the clerk under the direction of the court, and the names of the twenty persons shall be written upon two lists, * * *; and the said parties or their counsel shall each be permitted four peremptory challenges in accordance with Rule 746 of the Maryland Rules of Procedure and the remaining twelve persons shall thereupon be immediately empaneled and sworn as the petit jury in such cause. If the trial is for an offense punishable by death or confinement in the penitentiary, such additional names shall be added to the panel of petit jurors as may be necessary to enable the parties to exercise their right of peremptory challenge in accordance with Rule 746 of the Maryland Rules of Procedure.” The net result of § 15, supra, when read in conjunction with Rule 746, is to allocate, in criminal cases, four peremptory challenges to each of the parties (if there be more than one defendant the defense shall only be entitled to four peremptory challenges, collectively, unless the interest of each defendant is adverse or hostile to the other), except in those criminal trials where the offense charged is punishable by death or confinement in the penitentiary for twenty years or more. Rule 746, entitled “Challenge — Peremptory” provides in pertinent part: “a. Number. 1.

Cases Involving Death, Life Imprisonment or Twenty Years or More. In a trial in which the defendant is subject, on any single count, to a sentence of death, life imprisonment or twenty years or more of ⁴⁶⁵ imprisonment, except for common law offenses for which no specific penalty is provided by statute, each defendant shall be permitted twenty peremptory challenges and the State shall be permitted ten peremptory challenges for each defendant. * * * “c. When Made. A peremptory challenge may be exercised as a matter of right until the time that the jury is sworn.” The Court of Appeals in Turpin v. State, 55 Md. 462, 464 (1881), speaking through Chief Judge Bartol, quoted with approval from I Ch.

Crim. L. 534 m., where-in it is said: “Peremptory challenges are those which are made to the juror, without assigning any and which the courts are bound to The court then quoted from Proffat on Jury Trials, sec. 155, which states: “The right of peremptory challenge is deemed a most essential one to a prisoner, and is highly esteemed and protected in the law. It is the right to exclude from the panel those who may be suspected of entertaining a against a party, where sufficient reasons cannot be given for their exclusion for cause.” In this state, the right to peremptory challenges was first secured to a prisoner charged with capital offenses only. 1 By the Acts of 1841, ch. 162 (December session), the right of peremptory challenge was extended to every person indicted for any crime or misdemeanor, the ⁴⁶⁶ punishment for which was confinement in the penitentiary. 2 The Supreme Court in Swain v. Alabama, 380 U. S. 202 , 85 S. Ct. 824 , 13 L.Ed.2d 759 (1965), speaking through Mr. Justice White, said: “While challenges for cause permit rejection of jurors on a narrowly specified, provable and legally cognizable basis of partiality, the peremptory permits rejection for a real or imagined partiality that is less easily designated or demonstrable. Hayes v. Missouri, 120 U. S. 68, 70 .

It is often exercised upon the ‘sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another,’ Lewis, [v. United States 146 U. S. 370 ], supra, at 376, upon a juror’s ‘habits and associations,’ Hayes v. Missouri, supra, at 70, or upon the feeling that ‘the bare questioning [a juror’s] indifference may sometimes provoke a resentment,’ Lewis, supra, at 376 . * * * Hence veniremen are not always judged solely as individuals for the purpose of exercising peremptory challenges. Rather they are challenged in light of the limited knowledge counsel has of them, which may include their group affiliations, in the context of the case to be tried.” See also Harrison v. United States, 163 U. S. 140 , 16 S. Ct. 961 , 41 L. Ed. 104 (1896); Johnson v. State, 9 Md. App. 143, 150 , 262 A. 2d 792 (1970). The peremptory challenge is ofttimes