State v. McNay

Pearce, J., delivered the opinion of the Court. The appellee was indicted in the Circuit Court for Prince George’s County for selling liquor on Sunday. To this indictment he filed a plea in abatement alleging “that the said indictment nor presentment were not made, nor found, by a legal or lawful grand inquest, of grand jury of the State of Maryland, in and for Prince George’s County,” for three distinct reasons stated in the plea; viz, first, because the grand jury did not consist of twenty-three lawful jurors; 2nd, because the two hundred persons from whom the grap'd jury was drawn were not legally selected; and 3rd, because ch. 560 of the Acts of‘1904, under which the jury was drawn by Jury Commissioners appointed by the Governor, is unconstitutional. ’ • ' To this plea the State filed a general demurrer,-wdiich was overruled, and no replication being filed, judgment was given against the State and the indictment was quashed, from which judgment this appeal was taken. The learned Attorney-General argued that this plea was bad for. duplicity and as that objection if well founded, must prove fatal, it will be first considered.

The authorities agree that all pleadings are double which contain several answers, whatever the class or quality of the answer, whether in abatement or in bar. Stephen on Pleading, p. 258; Gould on Pleading, ch. 8, sec. 1; 7 Enc. Pl. and Pr. 238. Mr. Bishop in his new Crim.

Proc., vol. 1, sec. 432, states the rule thus: “Alike in criminal and civil proceedings, duplicity consists in alleging for one single purpose, or ⁶²⁵ object, two or more distinct grounds of complaint or defense when one alone would be effectual in law.” Mr. Stephen on p. 242, Tylers Edition, says that the meaning of this rule, with respect to the declaration (or indictment) is, “that it must not, in support of a single demand” (or charge), “allege several distinct matters by anyone of which that demand (or charge) is sufficiently supported; and, with respect to the subsequent pleadings, the meaning is, that none of them is to contain several distinct answers to that which preceded it, and the reason of the rule in each case is, that such pleading tends to several issues in respect of a single claim.” And again on pp. 245 and 246, he says that although a plea may make distinct answers to such parts of a declaration as relate to different matters of claim or complaint, ‘ ‘that none of the matters so alleged in a plea in abatement must be such as would alone be a sufficient answer to the whole;” and he gives the following illustration. The defendant pleaded in disability of the person of the plaintiff, ten different outlawries adjudged against him, and it was held .that the plea was ill for duplicity, because the plaintiff was disabled as well by one outlawry as by the whole ten.” So-here, the grand jury would be as effectually shown to be an unlawfully constituted body, by proof of anyone of the matters pleaded, as of all, assuming all of these matters to be valid objections to its organization. For this reason we think this plea is bad: for duplicity. At common law it would seem to be clear that demurrer is a proper mode of taking advantage of this defect. 1 Bishops New Crim.

Proc., sec. 442. Mr., Poe in sec. 738 of his work on pleading calls attention to the fact that the Act of 1888 omitted from sec. xo of Art. 75 the words, “and that no one plea contain distinct matters of defence or reply,” which were previously contained therein, and adds that since that Act duplicity is no longer the subject of demurrer in this State. But in Stearns v. The State, 81 Md. 341 , decided in 1895, an information for violation of the gambling act was held bad for du plicity, and we therefore hold this demurrer should- have been sustained. ■ ' ' ' . ■ - ⁶²⁶ The questions sought to be. raised by this plea, however, are important in themselves, and as affecting the- administration-of the criminal law in Prince George’s County, and we will therefore proceed to state our views in respect to them. The objections made our three-in number: First, that the grand jury did not consist of twenty-three lawful jurors.

Second, that the two hundred persons from whom they were drawn were not legally selected. Third, that the law requiring'the jury to be drawn by Jury Commissioners appointed by the • Governor is unconstitutional.' These will be considered- in their inverse order. 1st. At common law, jurors were selected by the Sheriff in his discretion. Bacons Abridgement, Juries B. B.; 12 Enc.

Pl. and Pr., 273. Thompson and Merriam on Jvries, sec. 44. In this State the Sheriff always made the selection of-the panel after the common law method, until the Act of 1867, ch. 329. Cooper v. State, 64 Md.45.

But this large discretion produced such abuses, that the practice, has been changed by statutes in most ofthe United States, the selection being now variously made as stated by Thompson and Merriam, see. 45, by Town Authorities, County Courts, County Commissioners, Selectmen, Supervisors, Special Boards, and Jury Commissioners. It is earnestly contended by the appellee that the Sheriff’s office is judicial in its nature, and that in selecting jurors he acted in a judicial capacity, and that the Act of 1904, vesting that power andf.duty in the hands of Jury Commissioners appointed by the Governor, is “an infringement upon the prerogatives of the judicial power, and for that reason is unconstitutional and void.” The Sheriff, however, is in fact the executive officer of the Court, as the Clerk. is its ministerial officer, and the Court possessed no power, and exercised no control whatever, over the Sheriff in the selection of jurors. Indeed,- it was the absence of this power which led to the enactment in the various States of the statutes which revolutionized the practice as we have stated. If the selection of jurors had ever been considered as a judicial function which could not be delegated to executive officers spe ⁶²⁷ dally designated for that purpose, the existence of so many statutes in the'differerit States, establishing that practice, would be remarkable in itself, since the'Constitutions of almost all the States provide, in varying terms, for the separation of the legislative, executive and judicial powers of government; and it would be still more remarkable that, so far as we are informed by the'argument, or have ourselves discovered, none of these statutes have been assailed upon that ground.

In addition to the preisumption of validity to be drawn from this concurrencé of practice and authority, in the States, the practice in the Federal Courts is the same, where the jurors are' selected by two ministerial officers, the clerk of the Court, and a Jury Commissioner appointed by the Judge. It is not material that one of these is an officer, and the other an appointee of the Court.' Neither one can exercise any judidal power, original or delegated, and the Judge can exert no power, nor exercise any control over either, in the performance of this duty. We cannot perceive any ground Upon which the Act of 1904 can be declared to be unconstitutional and void. 2nd. The plea states that “the Jury Commissioners did not select the list of 200 persons in whole as provided by sec. 177A of Art. 17 of the Local Code as amended by the Act of 1904, ch. 560, but that the said list of 200 persons so certified to the Court, from which the list of 48 names was afterwards to be drawn, was selected in part from lists furnished the said Jury Commissioners from persons in the several election districts of said county, contrary to law, and that by reason of such unlawful action on the part of said Jury Commissioners, the said list of 48 names, from which said grand jury was drawn, was, in part, made up of incompetent and disqualified persons as jurors; and that certain of such persons, so suggested as jurors, to said Jury Commissioners, and by them so selected as jurors, were chosen on said grand jury, at the first day ot the Court, and that thereby the said grand jury, as empannelled and sworn on the said first day of Court was not made up of qualified and competent persons legally qualified as grand jurors.” ⁶²⁸ This plea does not .show what lists are .referred ,to as furnished by persons in the several election districts. .

There is nothing to show that the names were not upon the tax lists or poll-books, or upon both; and in Downs v. the State, 78 Md. 131 , the selection from either was.held a sufficient compliance with the law. ■ ■ There.is nothing in this plea, to show that these names were not furnished to the Jury Commissioners at their request, and if so furnished this does not -offend against the law. In Avirett’s case, 76 Md. 510 , the grand jury was invalidated because the names were not selected by the Judge either from the- tax-lists or the poll-books. The precise thing which was denounced as-illegal in that case was the . “adoption” by the Judge, without any selection by him “of lists privately furnished to him- by persons who without his knowledge might be interested in securing the attendance of particular persons to serve upon the jury.”. But it was said in the same opinion, “a Judge, may very properly, and, from the nature of the case must often inform himself by inquiry as to the intelligence, sobriety, and integrity of the persons whose names he may select, but such inquiries are quite different from adopting selections made by some one else.” In the later case of State v. Keating, 85 Md. 188 , the Court in commenting upon the effort of the appellee to stretch the language in the Avirett-case beyond the application there given it, said, “A Judge-, may, during a term of Court be impressed with the demeanor and apparent intelligence of witnesses from localities in the county with which he is not well acquainted, and thinking that such persons would make good jurors, he may make memoranda of their names,- and make inquiries about them which may prove satisfactory.

If he then makes a memorandum of their names for the next or some other jury, can it be said, that such persons are thereby thus disqualified ? * * * If then he has obtained from legitimate sources 48 names selected by himself, after such investigation and inquiry as the law will permit, what is there to prohibit -him -from .having a full list before the day the jury is drawn? He does not technically, ⁶²⁹ select the names until the jury • is drawn. * * * So, what was said in the Avirett case in reference to the lists being privately and previously made-, must be taken -in connection with what was then being considered and determined, viz: that the list - itself was illegal; because it contained the names of those suggested by others, which in the opinion of the Court was equivalent to being selected by others, and not by the Judge.” Now, if a Judge,- reviewing, as careful Judges must, from time to time the poll-books and tax-lists from which he is to-select jurors, with a view to