State v. Vincent

⁷²² Pearce; ]., delivered’the opinion of the Court. The appellee was indicted in the Circuit Court for Prince 'George’s County for the crime of perjury before the same grand jury by which the indictment was found. Upon ■arraignment he-pleaded not guilty, but subsequently, and •presumably with the leave of the Court, withdrew this plea, ■and filed a general demurrer to the indictment, and the Court sustained the demurrer and quashed the indictment, from which action this appeal is taken. The chief and the •only substantial question presented, is whether it does nót ■appear upon the face of the indictment, and from its express ■averments, that the grand jury was so selected, drawn and •constituted, as to be incompetent to find a valid indictment.

Ordinarily there is a presumption of law that the grand jury was legally and regularly selected, drawn and empanelled, according to law, and that its proceedings at the •time the indictment was found were in every respect legal -and regular. State v. Scarborough, 55 Md. 350 . But this ¡presumption, the appellee insists, does not arise in this case, because he contends that the indictment upon its face shows : ■ 1st. That the grand jury was selected and chosen on the first day of the term, when the law provides that it shall be selected and drawn not less than fifteen days before the term ; and, 2nd.

That it was composed of only twenty-two grand jurors, when the law prescribes twenty-three as the requisite number. We shall transcribe here so much of the indictment as it will be necessary to consider in determining this appeal. ■“ The grand jurors of the State of Maryland for the body of Prince George’s County, do on their oath present, that heretofore, to wit, at a term of the Circuit Court for said County * * * begun on the first Monday of April, being the second day thereof in the year nineteen hundred, there was present the Hon. George C. Merrick, one of the Associate Judges of the Seventh Judicial Circuit of said State, embracing said county, ****** and ⁷²³ at the same term of said Circuit Court, to wit, on the second day of April in said year, there was duly selected and chosen George W. Wilson as foreman, and twenty-one other good and lawful men, to wit, William Berry, E. L. Houseman, Daniel McBarron, Joseph W. Clarke, William Binger, John B. Dale, Columbus C. Chew, George Gude, James T. Grimes, Samuel Dugan, J. M. T. Martin, Edward W. Perrie, Thomas H. Lyons, E. M. Hurley, Peter P. Tighe, Otho S. Pumphrey, J. Henry Murray, Nathaniel E. Hungerford, Edward H. Butler, John P'. Dent and Benjamin H. C. Bowie, who, together with the said foreman, constituted and composed the grand inquest of the State of Maryland for the body of said county, commonly called the grand jury, for the April term of said year, who were then and there, in due form of law, sworn and charged to inquire, &c.” Where there is nothing apparent upon the face of the indictment to repel the presumption that the grand jury was regularly and legally selected, drawn and empanelled, the question should be raised by plea in abatement before pleading to the merits, but where the indictment itself discloses an alleged fatal defect in this regard, the objection may be properly taken by demurrer.

Under the laws of Wisconsin, a grand jury constituted of a less number than sixteen is insufficient to find a good bill, and in Fitzgerald v. State, 4 Wis. 412 , the indictment was as follows: “ State of Wisconsin, La Fayette County, to wit: “ The grand jurors of the State of Wisconsin, to wit, twelve good and lawful men duly elected, drawn, empanelled and sworn to inquire, &c.” The Court said the part laid under the videlicet might have been omitted and the indictment still have been good, “ because then the legal presumption would have been that the jury was legally constituted; but here the case is different, the number being stated under a videlicet,” and it was held that what was laid under the videlicet could not ⁷²⁴ be rejected as surplusage, and that the indictment would not support a verdict and conviction. We think the words “ was duly selected and chosen ” though grammatically inaccurate, embrace as well the other jurors named, as the foreman and reasonably import that all were selected and chosen on the first day of the term, instead of fifteen days prior thereto, and that the grand jury was constituted of twenty-two, instead of twenty-three good and lawful men, and that therefore the demurrer raises in the proper manner and at the proper time, both objections made as to the legal selection and constitution-of the grand jury. Section 7 of Art. 51 of the Code of Public General Laws, which is applicable to Prince George’s County, provides that it shall be the duty of the Judges of the- Circuit Courts for each of the counties, not less than fifteen days before the commencement of each jufy term, after ftotice given to the bar, of the time and place of meeting, to select from certain prescribed sources, a panel to consist of a certain number of names for each county. Sections 8 and 10 of the same article, as they appear in Poe’s Supplement to the Public General Laws of Maryland, are not in force in Prince George’s County except as to one wholly immaterial matter the other matters dealt with in those sections being regulated in that county by sec. 178 of Art. 17 of its Public Local Laws, and by sec. 179 of the same article as amended and re-enacted by Chapter 483 of the Acts of Assembly of the year 1898.

The only material difference between sec. 8 of the Public General Law, and sec. 178 of the Public Local Law, being that under the former, 48 jurors are drawn — while under the latter 73 are drawn ; but the differences between sec. 10 of the Public General Law and sec. 179 of the Public Local Law, are numerous and important. Under section 10 of the General Law, the Court, at the beginning of the term for which the 48 jurors were drawn and summoned, selects and appoints one as foreman of the grand jury. The remaining 47 names are then placed in a ⁷²⁵ box and are drawn out, one by one, the first twenty-two names drawn, together with the foreman previously appointed, constituting the grand jury, and the remaining 25 names the petit jury, for that term. If, for any reason, any one so drawn as a grand juror is not present at the conclusion of the drawing, or is disqualified or excused for cause, the Court is required to fill such vacancy or vacancies from the remaining 25 names of those who are present in the order in which they were drawn, and may thereupon in its discretion fill the vacancies so made in the petit jury, by drawing the necessary number of additional names as provided in section 8, or may direct talesmen to be summoned as provided in section 9.

It will thus be seen that under the General Law, after selecting and drawing the 48 names, not less than 15 days before the commencement of the term and the issuing of the venire, nothing more is authorized to be done until the commencement of the term, except that authority is given to draw other names to supply the place of those of the 48, who are returned by the sheriff prior to the commencement of the term, as dead, sick, or otherwise unable to attend, or absent and therefore not found. There is, and can be, no designation of the grand jury until the commencement of the term. Section 179 of the Local Law of Prince George’s County provides that of the seventy-three jurors directed by the General Law to be drawn fifteen days before the term, the twenty-three names first occurring in the order in which they were drawn, shall “constitute and be the grand jury for the ensuing term,” and that the remaining 50 names next in the order of drawing, shall constitute and be the petit jury; and provision is made for dividing the petit jury into two panels, and for regulating the alternate attendance of these two panels. The section further requires that “the persons constituting the grand jury shall attend at the first day of the term,” and that “ the clerk shall publish a list of jurors in the newspapers published in said county for ⁷²⁶ two successive weeks before the commencement of each jury term of Court.” No express authority is given for the appointment of a foreman of the grand jury, this being doubtless regarded as within the inherent power of the Court.

Section io of the Public General Law, as amended by chapter 153 of 1892, extends the operatipn of that section to Prince George’s County, so far, and so far only, as to authorize the appointment of a substitute foreman, in event of the death, disability or absence of the regular foreman. We have deemed it proper to set forth at length the provisions both of the General and Local Law in reference to the selection, drawing and organizing of grand juries, in order that there may be no misapprehension as to the scope and effect of the decision in this case. We do not think it necessary to determine the first objection raised here, viz., that the provision that the jury must be drawn fifteen days before the commencement of the term, is a mandatory provision, the neglect of which invalidates the drawing. In State, ex rel.

Webster, v. County Commissioners of Baltimore County, 29 Md. 516 , it was said “ that where the duty prescribed is of’ a public nature, and intended for the public benefit, and is directed to be performed within a specified time, the statute is in respect to time, directory merely, unless from the nature of the act to be performed, pr the language employed in the statute, it plainly appears that the designation of time was intended as a limitation of the power of the officer.” The principle thus laid down has been repeatedly applied in later cases in this State, and if this question arose under the provisions of the Public General Law of the State to which we have referred, it would be difficult, we think, to imagine a situation more imperatively requiring its application. The reasons leading to this conclusion are too obvious to require statement. The publication of the list of jurors drawn for two weeks before the commencement of the term, which is required by the Local Law under which this case arises, ⁷²⁷ cannot be made unless the drawing is made at least two weeks before the commencement of the term, and the argument suggested is that the purpose of the provision is designed to inform the public, in advance of the commencement of the term, who are the grand and petit jurors, and to give opportunity for objection either to individuals or to the array, and that from the nature of the act to be performed it appears that the language employed in designating the duty must be regarded as mandatory; but upon this question we shall intimate no opinion, as it is not necessary to the determination of this case in the view we take of it. The second objection made is distinctly raised upon the record and we think is fatal to the validity of the indictment.

The same question was sought to be raised in State v. Scarborough, supra, by plea in abatement, and the Circuit Court for Harford County sustained the plea and quashed the indictment; but on writ of error this Court held the plea bad, because it might be true as