Young v. State , 90 Md. 579 ( 1900 )

The appellants were indicted for murder in the Circuit Court of Harford County.

At the trial the several jurors, having been sworn on theirvoir dire, declared they had not formed or expressed any opinion as to the guilt or innocence of the prisoners. After the whole panel had been sworn, and the State had produced a part of its evidence, "the counsel for the defense suggested to the Court, that it had just come to their knowledge that the eleventh juror on the panel, J. Pearl Wilson, a talesman summoned by the sheriff in this case (who had also summoned the coroner's jury of inquest), had served as foreman" of that jury and had "rendered a verdict over his hand and seal as foreman as aforesaid." The finding of the coroner's jury thus referred to, was that the deceased "came to his death from the effects of a pistol-shot wound * * * and we believe from the evidence that Joseph Young and Joseph Bush were implicated in the shooting." It appears that the coroner swore nineteen witnesses, and their testimony is fully set out in the record. The counsel for the prisoners thereupon claiming that the juror Wilson, having heard such evidence and rendered such a verdict, "must necessarily be biased and disqualified, challenged the array and moved that the Court discharge the panel." The Court overruled the challenge and the motion to discharge the panel, and permitted the trial to proceed, whereupon the defendants excepted.

It must be observed that the challenge is to the array and to discharge the panel. Such a challenge may be raised only when there is some objection affecting the constitution of the whole panel. 3 Blackstone Com., 359; 1 Bishop on Crim. Pro. sec. 744; 12 Ency. Pl. Prac., page 418 and authorities there cited.

The proper method of objecting to the qualifications of the juror in this case was by a challenge to the polls for cause. Such a challenge may be made properly when there is some disqualification attaching to a particular juror, and not to the constitution of the whole panel. 1 Bishop Crim. Pro. (supra.) If, therefore, this case be regarded according to the strict letter of the exception, the questions argued by the respective counsel at the hearing, would not be before us.

Let it, however, be taken as a challenge to the poll for cause. In respect to this, the general practice that prevails here and in most, if not all of the Courts having our system of jurisprudence, is that challenges for cause must be made before the juror is sworn; and that rule, is without exception, in all cases where the party objecting to the qualifications of the juror had knowledge at that time of the circumstances tending to disqualify; or could have known of them by the exercise of proper diligence in making inquiries or otherwise. And if with such knowledge, express or implied, he fails to make his challenge, before the juror is sworn, it must be deemed to have been waived, no matter how good his cause of challenge may be. Reg. v.Frost, 9 C. P. 129; Johns v. Hodges, 60 Md. 222, 223;Busey v. State, 85 Md. 118; Com., c., v. Knapp, 10 Pick, 477; Gillooly v. State, 58 Ind. 182; 1 Bishop on Crim.Procedure, sec. 932. (4th ed.); Green v. State, 59 Md. 123; 12 Ency. P. Prac., title Jury, page 437.

To enable the Court to entertain an objection to the qualifications of a juror, after he has been empanelled and sworn, and the trial has actually been begun by the production of evidence, it, at least, must be proven that party making the objection at the proper time for tendering challenges, did not actually know, and might not have known, the particular circumstances upon which rests the alleged disqualification.Thompson Merriam on Juries, sec. 275, note 2; Johns v.Hodges, supra.

In this case we have not adequate proof that the defendants were not fully aware of the fact that Wilson had served on the coroner's jury. They were not present at the hearing before the jury, it is true, but their counsel were. The latter witnessed the impanelling of the jury and must have observed the foreman, who occupied the most conspicuous position of all the jurors. There certainly is not the slightest reason why they might not have known that he was one of the jurors from their own recollection; and if that was not sufficient, nothing prevented an examination of the list of jurors before the coroner, or an actual inquiry of Wilson when he was on his voir dire. The exceptions do show that it was after the trial had begun that the knowledge of the alleged disqualification first came to their attorneys, but there is nothing in the record as to when it first came to the knowledge of the defendants. Nor can ignorance of the fact be imputed to them as a presumption of law or of fact. Their counsel having been present at the hearing before the coroner, the presumption would rather tend to prove that when Wilson was called as a juror, they knew of his service on the coroner's jury. And whether this be correct or not, it cannot be questioned that even a reasonable diligence in making proper inquiry would have enabled them to obtain possession of all the facts. If his presence on the jury resulted detrimentally to justice, the Court after the verdict, was fully empowered to grant a new trial; but we approve the rulings as set forth in this exception, as founded upon the rules of proper practice and most conducive to the attainment of justice.

The second and third exceptions present a question of evidence. The sheriff, who had been sworn as a witness for the State, testified that having been informed of the homicide, he went to Fleming's house to look for Young, one of the defendants, that he asked for Young, who thereupon came down "about half dressed" and that witness said, "Joe you don't know what I am up here for, do you;" and he said, "Yes sir, I do; its about that shooting scrape in Bel Air," that he asked for his pistol and he said he didn't have any; that witness said, "you could not shoot a man without having a pistol;" that Mollie Fleming went into the house and got the pistol, and witness "asked him if it was the pistol he did the shooting with and he said it was;" that Young said, he "had shot once or twice," c. On cross-examination witness said that "Young seemed to be very much excited and so was Bush." During the giving of this evidence, the counsel for the prisoners several times objected to the admission of Young's answers, and after the cross-examination, excepted generally to the sheriff's testimony, the Court, however, overruled all the objections and admitted it.

The fact that a party is in custody is not enough of itself to render his confessions inadmissible, provided they are not extorted by inducements or threats. Pierce Pierce v. U.S.160 U.S. 355; Rogers v. State, 89 Md. 424; Ross v.State, 67 Md. 288.

In this case the confession was freely and voluntarily made. No threat was made by the officer and no hope or promise of benefit held out to him. It was "left to the prisoner as a matter of perfect indifference whether he should open his mouth or not." This, said POLLOCK, C.B., in Regina v. Baldry, 12 E. Law E.R. 597, is the distinction between those cases where the confession is held inadmisible and those where it is not. InBiscoe's case, 67 Md. 10, on which the appellants rely, there was an inducement which the Court thought was of the "strongest kind;" the confession was therefore rejected.

After the State had closed its case, and some evidence had been given on the part of the defendant, an attachment issued for Mollie Fleming an absent witness, and upon the return thereof it appeared that the witness was ill and unable to attend. Thereupon the defendants, by their attorneys, prayed the Court "to pass an order directing that a commission issue at once to take the testimony of said Mollie Fleming." The refusal of the Court to so order, is the ground of the defendant's fourth exception.

In some of the States of the Union, there are statutes providing for commissions to take the testimony of absent witnesses in criminal cases. In Maryland there are provisions for taking the depositions of absent witnesses in civil cases. But these do not apply in criminal cases, and in such there is no statute or practice in any of the Courts permitting depositions taken by a commissioner to be read as evidence. There is in this State no inherent power to direct the taking of depositions to be used as evidence. Whatever power the Courts of law have, is conferred by statute, the provisions of which must be strictly followed. In Bell v. Morrison, 1 Pet. 355, where a deposition was excluded by the lower Court, MR. JUSTICE STORY in speaking for the Court said that "this is a point altogether dependent upon the construction of the Act of Congress, c.; the authority to take testimony in this manner being in derogation of the rules of the common law, has always been construed strictly,"c. So in Jackson v. Hobby, 20 Johns Reps. 362, the Court refers to the statute as being "an innovation on the common law rules of evidence." In Anonymous, 2 Chitty, 199, a rule was moved to show cause why the lessor in ejectment should not be permitted to examine a witness, upon interrogatories on the ground that he was too ill to attend. The Court in refusing the motion said "We cannot grant it. You must apply to a Court of Equity or get them to admit the facts." 2 Tidd's Practice, 860 (marg.); 6 Enc. of Pleading Practice, page 478 and 479; 1Greenleaf on Ev., secs. 320 to 323.

Finding no error the judgment will be affirmed.

Judgment affirmed.

(Decided January 11th, 1900).