Rogers v. State

Briscoe, J., delivered the opinion of the Court. The appellant was indicted and tried before a jury in the Criminal Court of Baltimore, found guilty of murder in the first degree and sentenced to be hanged. In the course of the trial three bills of exception were taken by the appellant and these form the basis of this appeal. By the first bill of exception it appears, that at the time of the empanelling of the jury, a juror, by the name of Stewart, was called and examined by the State, on his voir dire, then turned over to the counsel for the prisoner and accepted by him without further examination.

He was then challenged by the State, and to the ruling of the Court in permitting this to be done, after the juror had been accepted by the prisoner, the appellant excepted. There was no error in the ruling of the Court in this exception, which furnishes a cause for reversal in this case. It is specially provided by the 19th sec. of Art. 51, of the Code (Public General Laws), that the right of peremptory challenge shall be allowed to any person who shall be tried on presentment or indictment for any crime or misdemeanor where the punishment by law is death or confinement in the penitentiary ; the accused shall not challenge more than twenty, nor the State more than four, without assigning cause. The juror in this case was sworn upon his voir dire and examined as to his qualifications as a juror.

He was not challenged, but accepted by the prisoner as a competent ⁴²⁶ juror. It was, then, clearly proper for the State, not having exhausted its right of peremptory challenge and having no reason to challenge for cause, to exercise the statutory right of peremptory challenge and reject the juror. The right of peremptory challenge is a right not to select but simply to reject jurors, without cause assigned. And the order of time when this right of challenge shall be exercised is left by the statute to the judgment and discretion of the trial Court.

Turpin v. State, 55 Md. 462 . It is the settled practice in this' State that the right of peremptory challenge can be exercised until the juror has been sworn to try the case. In Biddle v. State, 67 Md. 306 , it is said: “Where the accused has exercised the right of peremptory challenge in respect to any member of the panel, and the juror thus challenged has retired from the box, the Court will not allow the challenge to be recalled or with drawn.” The second and third exceptions relate to the admissibility in evidence of a confession by the prisoner and present the same question. Now the rule is well established that a confession, unless freely and voluntarily made, is not admissible in evidence.

Nicholson v. State, 38 Md. 142 ; Biscoe v. State, 67 Md. 7 . At the time of the alleged confession in this case, the prisoner was confined in 'the Central Police Station, Baltimore, and was held on the chárge of murder of one Charles A. Lewis. Sergeant Henry, one of the officers, testified as follows, in reference to the preliminaries, which led up to the confession: “ A. The Captain sent me back to see him after the turnkey had come out and made his report to him ; I went back and spoke to him and asked him how he was, &c., and I said,