State v. Glascow

Ritchie, J., delivered, the opinion of the Court. An indictment for barn-burning was found against the defendant in error, in the Circuit Court for Baltimore County, at the December Term, 1881, to which the prisoner pleaded, in abatement, such alleged non-compliance with those provisions of the Act of 1870, chap. 220, which prescribe the mode of drawing the jury in that county, as. rendered the grand jury illegal, and the indictment, consequently void. That statute, as to Baltimore County, directs that the two hundred names of qualified citizens from which the forty-eight are to he taken who shall constitute the grand and petit juries, instead of being deposited by the Judges in one common box, as in most of the counties of the State, shall he placed in thirteen separate compartments which hear the numbers of the election districts where the persons so selected respectively reside,, and from each of these compartments shall then be drawn a certain specified number making in the aggregate forty-eight names, for the general panel for both juries; the number to be so taken from compartment No. 8, being five. The matter specially relied on in the pleas is, that among-the names placed in box No. 8, and among the five drawn-therefrom,, was the name of one Edward Toolan, who was. at the time his name was so placed in said box, and drawn therefrom, and for a great length of time had been, a resident of the City of Baltimore; that by reason of this error hut four, instead of five, qualified members of the. general panel of forty-eight were taken from the compartment, representing the eighth election district; and that in consequence the grand jury, afterwards drawn from the list of forty-eight names, which included that of Edward Toolan, was not constituted according to law, and its indictment of the traverser, therefore, irregular and of no. effect.

To the pleas in abatement a demurrer was filed, which was overruled, and judgment was entered quashing the ²¹¹ indictment. The case was thereupon removed as by writ of error to the Court of Appeals. The Attorney-General, who represents the State in this Court, contends not only that there was error in the Circuit Court, as to the substantial question involved, hut also that the pleas in abatement are vicious from technical uncertainty. In view, however, of the conclusion arrived at by this Court upon the substance of the matter in controversy, we deem it unnecessary to consider the latter objection.

It appears from the agreement of counsel in the record, that Edward Toolan was not drawn upon the grand jury, but was left on the panel for the petit jurors, and was, after serving thereon, discharged before the end of the term. . The simple question, therefore, for us to decide, is, whether the fact of Edward Toolan's being a resident of Baltimore City, when his name was taken from box No. 8, although it was not among the twenty-three subsequently drawn upon the grand jury, so vitiated the entire drawing as to invalidate that body and annul its action. The answer to this question is to he found, we think, in the answer to the further one, whether, conceding there was irregularity, the circumstance relied on by the traverser so affected the composition or conduct of the grand jury as to practically operate to his prejudice or disadvantage. He does not so allege, nor can we perceive that it did.

Whatever weight the non-residence of Toolan might have had in determining his own qualifications as a petit juror, it certainly had no substantial hearing upon the qualifications or fitness of those actually constituting the grand jury. They, at least, were “good and lawful" men, possessing all the essential requisites for membership in that body, and free from any statutory disability in themselves. There was nothing in the fact of Toolan’s non-residence to impair their fitness to discharge with skill and impartiality the duty of investigating the charge against ²¹² the accused or to prevent a finding in accordance with the law and the evidence. The prisoner was in no sense damnified, and he could not show, as he has not undertakemto show, that but for the fact of Toolan’s non-residence, the deliberations of the jury would have been more intelligent or impartial, or that a different conclusion would have been reasonably possible, had an actual resident of the eighth district been drawn from the box instead of