Turpin v. State

Bartol, C. J., delivered the opinion of the Court. The appellant was indicted in the Circuit Court for Wicomico County for the murder of William E. Farrington, and was found guilty of murder in the second degree. During the trial he took six hills of exceptions to the rul ⁴⁶⁴ ings of the Court below, which are brought before us for review on this appeal. First Exception. — One of the panel of jurors was called, and being sworn and examined upon his voir dire, it was determined by the Court that he was an impartial juror; the prisoner then hy his counsel, moved the Court to require the State to exercise its right of peremptory challenge, before the prisoner should be required to exercise that right.

But the Court overruled the motion, and required the prisoner to exercise his right of peremptory challenge before the State was called on to exercise its right; whereupon the prisoner excepted. It is stated in the bill of exceptions that this ruling was in conformity to the uniform practice in that Court. “Peremptory challenges are those which are made to the juror, without assigning any reason, and which the Courts are hound to respect.” 1 Ch. Crim. L., 534 m. “ The right of peremptory challenge is deemed a most essential one to a prisoner, and is highly esteemed and protected in law.

It is the right to exclude from the panel those who may be suspected of entertaining a prejudice ■against a party, where sufficient reasons cannot be given for their exclusion for cause.” Proffat on Jury Trials, sec. 155. This right of challenge in capital cases, was recognized in England for a long period of time, to the number of thirty-five. It has since been regulated there by various ■ statutes, which need not be here referred to. In this '■State it has been secured to the prisoner by the Acts of 1737, ch. 2, 1744, ch. 20, 1751, ch. 14, 1809, ch. 138, .sec. 13, 1816, ch. 45.

By the Act of 1841, ch. 162, the .right of peremptory challenge was extended to every ■person indicted for any crime or misdemeanor, the punishment whereof was confinement in the penitentiary. This Act was incorporated in the Code, Art. 50, sec. 15, which •^provides further that the accused shall not challenge ⁴⁶⁵ more than twenty jurors without assigning cause. So stood the law before the Act of 1872, ch. 40. This was an act to repeal sec. 15, Art. 50, of the Code, and to re-enact the same with amendments, giving to the State the right of peremptory challenge in certain cases, and it provides “That the right of peremptory challenge shall he allowed to any person who shall he tried on presentment or indictment for any crime or misdemeanor, the punishment whereof, hy law, is death, or confinement in the penitentiary, and to the State on the trial of such indictment or presentment; hut the accused shall not challenge more than twenty, nor the State more than four jurors, without assigning cause.” Before this Act was passed, no right of peremptory challenge hy the State existed in Maryland; except in the City of Baltimore under the Act of 1860, ch. 308, sec. 18.

(2 Code, see. 618.) By the common law the prosecution in criminal cases could exercise on behalf of the crown peremptory challenges to an unlimited extent, without alleging any other reason than “ quod non boni sunt pro rege.” Proffat, sec. 159. This was changed by the Statute of 33 Edw., 1 , ch. 4, which while it took away from the crown, the unlimited right of peremptory challenge, was construed by the Courts to allow the prosecution a qualified right of peremptory challenge, which was exercised hy allowing the prosecution the privilege of setting aside jurors when called, without assigning cause, until the panel was exhausted, when if the full number was obtained, such .jurors were not called, hut if not, their names were after-wards called on the general list. Reg. vs. Frost, 9 C. & P., 136; Mausel vs. The Queen, 8 E. & B., 54. In Brandreth’s case, the question arose whether the prisoner should he required to exercise his right of peremptory challenge, before the right of challenge was ⁴⁶⁶ exercised by the crown, and after full argument, it was decided tbat according to the uniform practice, the right must first be exercised by the prisoner. 32 State Trials, 771, 774, 775.

A similar decision had been made in Layer’s Case, 16 State Trials, 135. We refer also to State vs. Bone, 7 Jones’ Law R., 121. In Jones vs. The State, 2 Blatchford, 475, the same question here presented arose under the Indiana Statute. The Circuit Court overruled the motion of the defendant that the State’s Attorney should be required first to accept or reject the juror, before the defendant should be called on to make his election, and certain jurors after they had been accepted by the defendant, were set aside by the prosecuting attorney, which was alleged as error.

The appellate Court in disposing of the question, said: “ The only question on this point is who shall first make his challenge ? If this were a new question, and we had it to settle, we should say that the State ought first to make her challenges, but as all the English authorities establish a different doctrine, and no American cases have been seen by us to authorize a different practice, we are bound for the present to sanction what the Circuit Court has done.” In State vs. Hays, 23 Missouri R., 287, a similar question arose. The Missouri statute like our act of 1812, allowed the accused twenty peremptory challenges and the State four, the prisoner moved that the State should be required to exercise its right of challenge first, this was overruled and the panel or list of jurors, was furnished to the State’s attorney and to the prisoner, and each was required to exercise their right of peremptory challenge at the same time, by striking from the list of thirty-six jurors, the objectionable names, neither knowing which had been stricken by the other. This was alleged as error and cause of reversal.

The Supreme ⁴⁶⁷ Court speaking by Judge Ryland said: “We do not think this such an error as would justify the court in reversing. The prisoner does not appear to have been deprived of any legal right. In what order the parties shall exercise this right, is a matter within the discretion of the Circuit Court. The simplest rule upon this subject, and one to which there would seem to he no objection, is that of requiring the parties to challenge as the jurors are called, and pronounced qualified, the plaintiff always speaking first.

This rule I believe has been generally practiced, at least as far as my experience upon the Circuit Court extends, I never knew it deviated from, and that experience embraces a period of eighteen years. But as the rule adopted in this case deprives the prisoner of no legal right, and it does not appear that the discretion was exercised oppressively, it forms no ground for reversal. The right of peremptory challenges iy a right to reject and not to select a jury.” ^ In Stale vs. Steeley, 65 Missouri, 219, it was decided that “ in criminal cases the State must announce her peremptory challenges of jurors, before the defendant can be required to announce his.” But that decision was made under a statute, which in express terms, prescribed that course of proceeding. The Act of 1872 does not prescribe the order in which the challenges shall be made, or direct whether the State or the prisoner shall first exercise the right.

It would seem, therefore, that the course of proceeding in this respect is left to the discretion of the Circuit Court. It appears from the statements of my brothers, who preside in the circuits, that the practice has not been uniform; while in several of the circuits the practice has been to require the State to challenge first; in the City of Baltimore, in the fourth circuit, and in the circuit from which this appeal comes, a different rule has prevailed. But it seems to us very clear that the action of the Circuit Court ⁴⁶⁸ on this question can furnish no ground for reversal. The appellant has not been deprived of any legal right.

His complaint is that by the ruling of the Court below, after having accepted certain jurors, they were challenged by the State, and he was thus deprived of jurors of his selection. But the law gives him the right only to reject, not to select the jurors. This subject was fully considered in the able opin-io.n- of Judge Stoky in U. States vs. Marchant and Colson, 12 Wheaton, 480 . There two parties were indicted jointly and claimed the right to sever, and be tried separately; this was denied, and this ruling was alleged as error.

But the Court held it was not error to require them to be tried together. If tried in that way, it was conceded that each of- the' accused had the right to challenge the whole number allowed by statute, and it was contended on the part of the accused, that as one might desire to retain a juror who is challenged by the other, and if challenged by one he must be withdrawn as to both, and thus the right of'selection would be virtually impaired. In answer to this-argument the learned judge said: “ But it does not appear to us that this reasoning can, upon the principles of the common law be supported. The right of peremptory challenge, is not of itself a right to select, but a right to reject jurors.

It excludes from the panel those whom the prisoner objects to, until he has exhausted his challenges, and leaves the residue to be drawn for his trial, according to the established order and usages of the Court. The elementary writers nowhere assert a right of this nature in the prisoner, but uniformly put the allowance of peremptory challenges upon distinct grounds. Mr. Justice Blackstone in his commentaries, (4 Bl. Com., 353) puts it upon the ground, that the party may not be tried by persons against whom he has conceived a prejudice, or who if he has unsuccessfully challenged them for cause, may on that account conceive a prejudice against the prisoner.

The right, therefore, of ⁴⁶⁹ challenge does not necessarily draw after it the right of selection, hut merely of exclusion. It enables the prisoner to say who shall not try him; hut not to say who shall he the particular jurors to try him. The law presumes that every juror sworn in the case is indifferent, and above legal exception; for otherwise he may he challenged for cause.” The reasoning of the learned judge is applicable to the question before us. The only ground of objection to the ruling of the Circuit Court, urged by the appellant, is that he was thereby deprived of jurors, who were acceptable to him; hut it is obvious that the same result might follow, whether the right of challenge by the State he exercised before or after the prisoner has spoken.

In either case the prisoner would not he deprived of any legal right, which as we have seen is not a right to select the jurors, hut simply to reject such as he may consider objectionable, to the number of twenfy. This privilege was enjoyed by the appellant without restriction. And as the statute does not prescribe the order in which the challenges shall he made by the prisoner and the State respectively, the determination of that question was left to the judgment and discretion of the Circuit Court. It follows 'that the ruling contained in the first bill of exceptions, furnishes no cause for reversal.

The second bill of exceptions was taken to the exclusion by the Circuit Court of the conversation between George Brown, one of the farm hands of the deceased, and Columbus Horsey, one of the witnesses for the State, which took place on the morning of the day when the deceased was killed. This testimony was offered by the defence on the cross examination of Columbus Horsey, who was an eye witness of the homicide. The witness on his examination in chief was asked, “ how came you to be there ?” and answered, “ George Brown told me Mr. Farrington was going after his pigs.” On cross-examination he was ⁴⁷⁰ asked by the prisoner’s counsel, “ to state all that conversation, in which he had stated that George Brown had told him that Mr. Farrington was going after his pigs.” To which question the State by its counsel objected, which objection the Court sustained, on the ground that the question of the State put to the witness, and his answer as far as it went, was mere matter of inducement, and that the balance of the conversation was not part of the res gestae, and would be mere hearsay, and immaterial to the issue in the cause, whereupon the prisoner by his counsel excepted. There can he no doubt or question of the correctness of this ruling; and for the reasons assigned by the Circuit Court, the testimony was properly excluded.

The same may he said of the ruling in the third hill of exceptions, which presents the same question. The same witness was asked, “ what information was given him by Brown, in that conversation with him about Farrington going after his pigs.” The counsel of the prisoner being asked what the object of the question was, stated that “ they wanted to know all that Brown said of the deceased’s purposes in going after his pigs, including his manner and language in the declaration of such purposes.” This was excluded and very properly as such testimony would be mere hearsay, and wholly immaterial. In the argument of the cause in this Court, no point has been made by the appellant’s counsel, upon the second and third bills of exceptions, and no argument is needed to show that there was no error in the rulings of the Circuit Court upon the questions therein presented. Fourth hill of exceptions. — It appears from the facts stated in the second• hill of exceptions, that the killing of the deceased by the appellant was proved by the witness, Ashhy Turpin, who also proved the circumstances which preceded and attended the homicide.

It appears from his testimony, that there were some pigs on the farm of the ⁴⁷¹ appellant which, were claimed by the deceased, that the latter had sent the witness and George Brown, one of the farm, hands of deceased, in the morning to get the pigs, and the appellant prevented the men from taking them ; when the deceased was informed of this, he became excited, and called on his wife for his revolver, which she at first refused to get for him, but on being assured that he would not use it except in self defence, she got it and gave it to him, and he expressed his determination to have his pigs; the deceased afterwards asked witness to go with him after dinner to get the pigs. Evidence was also given hy witnesses introduced by the 'State, tending to show that George Brown, Thomas Handy, Archelaus Rounds and Ferdinand Goslee, were farm hands of Farrington, (the