# Avirett v. State > Court of Appeals of Maryland · January 13, 1893 · 76 Md. 510 URL: https://www.frixlaw.com/law-library/cases/7898736 ## Case - **Full name:** John W. Avirett v. State of Maryland - **Court:** Court of Appeals of Maryland - **Decided:** January 13, 1893 - **Citations:** 76 Md. 510; 25 A. 676; 1893 Md. LEXIS 99 - **Precedential status:** Published - **Opinion:** Dissent by Robinson - **Judges:** McSherry, Robinson - **Cited by:** 56 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7898736 ## Opinion text Robinson, J., filed the following dissenting opinion: I cannot agree with the majority of the Court as to the construction of the jury Act. I cannot agree, because the construction now placed upon it, is not only against the uniform, practice, that has existed in this State ever since it was passed, a period of five and twenty years, but against, it seems to me, the letter and the spirit of the Act itself. One might infer from the argument of counsel that the Act was passed solely for the benefit of Alleghany County, and that its construction was to be governed by conditions existing or supposed at least to exist in that county. It is an Act however, providing the mode and manner for the selection of jurors for each and every county in the State, and like all other statutes it is to be construed according to its plain import and meaning, bearing in mind the object and purposes for which it was passed. Now what are the provisions of the Act ? It provides that it shall be the duty of the Judges of the Circuit Courts for each of the counties, in the presence of such members of the Bar, as shall think proper to attend, to select from the tax list and poll-books of the several election districts of ,the county, a panel of two hundred prisons, the said panel to be fairly and impartally selected, with special reference to the intelligence, sobriety and *541 integrity of such persons, and without the least reference to their political opinions. It further provides, that the names thus selected shall be written on separate ballots and these ballots shall be put in a box, from which shall be drawn, one by one, forty-eight ballots, and the names appearing on the ballots so drawn, shall constitute the grand and petit juries. Now I agree that the Judge himself and no one else is to select the panel of two hundred persons. I agree too, that this selection is to be made publicly, in the presence of such members of the Bar as may think proper to be present. But I cannot agree, that the tax lists and poll-books “are the two exclusive sources from which the Judge can procure the names to be placed in the jury box.” These two sources merely show who are voters and who are tax-payers. But these are not the only qualifications prescribed by the Act. On the contrary, it provides in express terms that the panel shall be selected “with special reference to the intelligence, sobriety and integrity of the persons selected.” And however wide may be his acquaintance, it can hardly be presumed that a Judge can from his own personal knowledge determine the qualifications of the five thousand persons in some counties and fifteen thousand in others, whose names appear upon the tax list and poll-books. In fact, the Court say, a Judge may very properly, and from the nature of the case, must often inform himself by inquiring as to the qualifications of the persons selected. But he cannot request persons, who may be familiar with the people living in their respective neighborhoods to furnish or suggest the names of persons qualified in their judgment to act as jurors. Not that the statute so forbids, for it is entirely silent as to the mode and manner by which the Judges are to inform themselves as to the qualifications of the persons to be selected. *542 But because it is said, that the names thus suggested are not names selected by the Judges themselves. Now, if by this it is meant, that they are not names selected by the Judges from their own personal knowledge we agree, but at the same time they are none the less the selection of the Judges though made upon the suggestion or information of others. A Judge is in no manner bound to accept the names suggested; he may upon consideration accept all, or some, or reject the list altogether. Then again it is said it might afford an opportunity “for the cunning, the crafty and the unscrupulous, to secure the selection of a venal, a corrupt or pliable jury.” These are evils certainly to be avoided. But this objection assumes and must necessarily assume, that a Judge would request or accept the suggestions of the “cunning” and the “crafty.” This it seems to me is rather a violent presumption. On the contrary, is it not fair to presume, that a Judge would take to his counsels, persons of character, well known to him, and upon whom he could confidently rely for impartial and independent advice ? But, be this as it may, these objections, imaginary at the best, it seems to me, apply with equal force in all cases where a Judge finds it necessary to inform himself as to the 'qualifications of the persons to be selected by information derived from others. Suppose for instance, and we must deal with this matter practically, he takes a list of names, and upon inquiry he is informed that A. B. C. are qualified jurors, but that D. E. F. are not, and upon this information the former are selected; is the selection thus made by the Judge any more his own selection, than if the names had been in fact suggested to him? Would not “the cunning” and “the crafty,” have the same opportunity to mislead him, and to secure a corrupt jury in the one case as in the other? And to hold that a Judge may inform himself by inquiry, but that he cannot request others upon *543 whom he can rely to furnish or suggest to him the names of persons in different parts of the county possessing the qualifications prescribed by the Act, is a distinction it seems to me with all deference, without a difference. There is nothing either in the language of the Act, or the purposes for which it was passed, to support such a distinction. Having imposed upon the Judges the duty of selecting jurors, the Legislature meant that they should avail themselves of all such sources of information as they, in their judgment, might deem proper. It was never meant to embarrass them by such refined distinctions as to render the selection of jurors by them almost impracticable. I say impracticable, for such are the changes constantly going on in a population, by deaths, removals, and other causes, that a Judge would find it a difficult matter even in his own county, from his own personal knowledge, to select from the tax list and poll-books two hundred persons having the qualifications required by law. He might be able to select that number from among his own acquaintances, but the selection of jurors is not to be confined to such persons only as may be known to him, but from the body of the people, and from all parts of the county. And, besides, how is he to make the selection in another county, which has no resident Judge ? The tax list and the poll-books are, say the Court, the “exclusive sources from which he can procure the names,” and though he may not know fifty persons whose names appear thereon, yet he must not request any one else to furnish or suggest the names of persons suitable as jurors. How, then, is he to procure the names ? He must necessarily select the two hundred names from among the five or ten thousand to be found on the poll-books and tax list somewhat at random, and then he must inform himself, by inquiry of others, as to the qualifications of the persons thus selected. It may be that not one-fourth or *544 fifth of the persons so selected possess the qualifications required by the Act, and then he is obliged to select again at random from the poll-books and tax list other names in the place of those rejected, and so on, till at last he has found two hundred persons of “intelligence,” “sobriety,” and “integrity.” Or, instead of this mode, he may take the poll-books and tax list, and in the presence of the members of the Bar and other persons, go over the names one by one, till, from his own knowledge or from information derived from others, he has found two hundred qualified jurors. This, one of the Judges in my circuit attempted to do, and it ended in a general wrangle between certain members of the Bar as to the respective qualifications of the persons to be selected. I cannot suppose for a moment that the Legislature ever meant to surround the selections of jurors with such embarrassments and difficulties as these. No such construction was ever put upon this Act during the five and twenty years since it was passed, and tested by it, I question whether during all this period there ever has been in this State a lawfully constituted grand or petit jury. I am quite sure that I have not, nor has any other Judge so far as I am advised, ever selected a panel in conformity with the construction of the Court. On the contrary, I myself, and other Judges, to my knowledge, have selected jurors in the same manner substantially as the panel in this case was selected by Judge Hoffman. I have always considered it to be my duty only to inform myself,'by inquiry of persons in whose judgment I could only rely, or by any other means, as to the qualifications of persons residing in different parts of the county. And when necessary I have not hesitated to request them, to furnish me the names of such persons for my consideration. There may be some objections in requiring the Judges to perform this or any other duty not strictly judicial; and they *545 would, I know, be very glad, so far as concerns themselves, to be relieved of it. At the same time it is the best mode, it seems to me, for the selection of competent and impartial jurors; and it is to be hoped that the law-will be so amended as to relieve the execution of it from the difficulties resulting from the construction now placed upon it. If not, then the sooner it is repealed, and some other mode adopted, the better it will be for the administration of the law. (Filed 2nd February, 1893.) As to the other questions decided by the Court,— whether the libel was, properly pleaded in the several counts of the indictment, or whether one good count in an indictment will sustain a verdict of guilty where there has been a special demurrer to each count, — I express no opinion. I express no opinion because, if the grand jury was an illegally constituted body, and the Court has decided it was, and the indictment was a nullity, then there is an end of the case. This being so, whether Gibson vs. State, 54 Md., 447 , was rightly decided, is not really a question before the Court — it is not before the Court because, the indictment being a nullity, a conviction under it, could not be sustained, irrespective altogether whether the counts are good or bad. This much, however, I may say, that the decision in that case was rendered after full consideration, and concurred in by Bartol, C. J., Bowie, Miller, Alvey, and Robinson, J., and 1 hardly think it necessary to reverse it upon what seems to me to be merely a moot question. “Stare decisis” is an old, but safe, maxim of the law. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7898736. Public record. Not legal advice.