State v. Madison

Hornby, J.,

filed the following dissenting opinion in which Barnes, J., concurred.

I do not agree that all pending indictments or trials by grand or petit jurors selected under the provisions of Article 36 of the Declaration of Rights are defective as to those indictees who profess a belief in God. Nor do I agree that the sustaining of an indictment against a person who believes in God and the dismissal of an indictment against a person who does not have such a belief would invariably constitute an unconstitutional discrimination in favor of nonbelievers as against believers.

Torcaso v. Watkins, 367 U. S. 488 (1961), held that a non *276 believer seeking an appointment as a notary public could not be compelled to declare he believed in the existence of God. But the decision in that case did not proscribe the right of a believer to declare his belief in God as a part of the official oath of office if he chose to do so. It is therefore as much the right of a believer to declare his belief as it is the right of a nonbeliever to decline to do so. For this reason, and because a believer would not ordinarily be injured or prejudiced thereby, the former practice of an elected or appointed officeholder making a declaration of his belief in God in taking an oath of office has not been discontinued.

*275 “[W]hile there is some confusion in the courts, that is only temporary. The courts themselves are facing up to the problem and adapting their procedures to the legal situation.

“All noncriminal matters are being tried in legal order. There will be no wholesale release of prisoners on a mere technicality. Jurors are still under the obligation to perform their civic responsibilities and duties to the best of their ability and in furtherance of the public interest * * *

“[T]he public may rest assured that no more than temporary dislocations in the administration of justice need be anticipated.” The Sun, Oct. 34, 1965, p. 34, col. 1.

*276 By the same token, although the majority in Schowgurow v. State, 240 Md. 121 , 213 A. 2d 475 (1965), having taken judicial notice of the fact (there being no showing of actual prejudice) that nonbelieving jurors had been excluded from serving as jurors, held, in equating the exclusion of nonbelievers to the exclusion of persons because of race or national origin, that the challenges of the appellant to the composition of the grand jury which indicted him and the petit jury which tried him were valid and that the motions to dismiss the indictment and the panel of petit jurors should have been granted, the decision nevertheless, as I understood it, was limited to the appellant and other members of the class that had been excluded from the jury for lack of belief in God.

While that part of Article 36 requiring jurors to profess a belief in God has been declared unconstitutional as to criminal defendants who are nonbelievers, there is, as I see it, no reason for holding that Article 36 is also null and void as to the appellee in this case who is a believer in the absence of a showing (and there was none) that he was actually prejudiced or otherwise had standing to contest the validity of the indictment. The reasoning of the majority carried a step further, could result: (1) in all officeholders (including the members of this Court), who declared a belief in God as a part of their official oath, being held to be unqualified to perform the duties of their office; and (2) in criminal defendants, who are still imprisoned, regardless of when they were indicted or tried and convicted by a jury composed of believers only, being entitled to reindictment and new trials. While the first statement might *277 be said to be an absurdity, the second, despite its catastrophic effect, is not beyond the realm of possibility. Not only was the holding of the majority in this case unnecessary under the circumstances, but the cases clearly do not compel the unfortunate result it reached.

As to necessity, since there was no showing of any prejudice to the appellee, who professes to be a member of the Apostolic faith and therefore a believer in God, in connection with the selection of the jurors drawn at the 1965 September Term of the Criminal Court of Baltimore, which had been accomplished in accordance with the constitutional requirements then existent, it is inconceivable to me how a believer in God could possibly have been prejudiced by the manner in which the grand jurors were sworn. The record, such as it is, indicates that when the judge, whose duty it was to charge the grand jury, inquired whether there were any among them who disbelieved in God, all jurors answered in the negative. But had Schowgurow been decided and there had been affirmative answers, then all that the clerk of court need have done was swear those who professed to be believers by administering the customary grand jury oath and separately affirm those who were nonbelievers (possibly under penalty of perjury) by administering an affirmation similar to that taken by the members of those religious denominations or sects who decline to take an oath. In so doing, the beliefs of each member of the grand jury would have been gratified and the rights of those indicted by the jury — whether believers or nonbelievers — would not have been violated. And in that event, since no constitutional question would have been involved, it would have been unnecessary to discharge the grand jury as then constituted and select another one which may or may not have consisted of believers only, nonbelievers only, or both believers and nonbelievers. It follows therefore, it seems to me, since the appellee, who is a Christian, has shown no actual prejudice to himself by having been indicted by a jury of believers, that there is in this case no necessity to require reindictment of the appellee by another grand jury drawn without regard to the religious beliefs of the members thereof.

While it was held in Clare v. State, 30 Md. 163 (1869), that *278 an indictment found by grand jurors who had been selected from a list prepared by a deputy clerk instead of by the judges was fatally defective and should have been quashed and the traverser reindicted; and it was also held in State v. Vincent, 91 Md. 718 , 47 Atl. 1036 (1900), that an indictment by a grand jury composed of less than twenty-three members was invalid as to a traverser who had not waived the defect, neither of these cases, both of which concerned the violation of statutory rather than fundamental law, is authority for the statement of the majority that “once it is established that the method of the grand jury’s selection is unconstitutional, any accused indicted by such jury has the right to have the indictment dismissed.” On the contrary, in State v. Scarborough, 55 Md. 345 (1881), it was said that, in the absence of a showing to the contrary, there is a presumption of law that a grand jury was legally and regularly drawn and empaneled; in State v. Glascow, 59 Md. 209, 212 (1882), it was said of a statute (not a constitutional provision) that unless the irregularities therein are such as “to materially violate it, or so affect the juries as to prejudice the rights of the citizen, these irregularities should not be treated as fatal”; and in State v. Keating, 85 Md. 188, 198 , 36 Atl. 840 (1897), it was said that “although there be irregularities in the selection and drawing of a jury the proceedings will not be set aside, unless the Court can see that they have resulted, or may result, to the prejudice of the party accused.” None of these cases, though infrequently cited, have ever been overruled. See State v. Vincent, supra, at p. 729 ; King v. State, 190 Md. 361 , 58 A. 2d 663 (1948); and Young v. Lynch, 194 Md. 68 , 69 A. 2d 787 (1949).

With respect to the cases in other jurisdictions cited by the majority for the proposition that where the system of jury selection on its face provides for illegal discrimination and exclusion an actual showing of prejudice is unnecessary, such as Walter v. Indiana, 195 N. E. 268 (Ind. 1935), Ballard v. United States, 329 U. S. 187 (1946) and Cassell v. Texas, 339 U. S. 282 (1950), they are no more than additional authority for the holding in Schowgurow that the exclusion of persons from juries because they did not believe in God was invalid. None of them, as I read them, are authority for the holding of the ma *279 jority in this case that all pending and future indictments or trials by grand or petit jurors selected under the method prescribed by Article 36, supra, are ipso facto fatally defective as to the appellee without showing that he had been prejudiced.

Nor do the cases, as I read them, compel the holding reached by the majority in this case. Since, if it be assumed as the majority has done, that the situation here is analogous to the circumstances in those cases dealing with systematic exclusion of persons because of race, national origin and sex, it seems apparent to me that the appellee, a believer in God, who has shown no prejudice, has not been harmed by having been indicted by a grand jury composed of believers only. The traditional doctrine concerning such exclusions is embodied in the “same-class” rule which is to the effect that if the defendant is a member of the group or other class excluded the danger of prejudice is great enough for a court to hold that the exclusion is unconstitutional without a showing of actual prejudice; but if he is not a member of the excluded group or class the danger is not great, and before the court will hold the exclusion unconstitutional as to him, it must find that the defendant was actually prejudiced.

This has been the established rule in other states for some years. See, for example, Griffin v. State, 190 S. E. 2 (Ga. 1937); Haraway v. State, 159 S. W. 2d 733 (Ark. 1942), cert. den. 317 U. S. 648 (1942) ; State v. Koritz, 43 S. E. 2d 77 (N. C. 1947), cert. den. 332 U. S. 768 (1947); State v. Jones, 57 A. 2d 109 (Del. 1947); People v. White, 278 P. 2d 9 (Cal. 1954), cert. den. 350 U. S. 875 (1956); State v. Lea, 84 So. 2d 169 (La. 1955), cert. den. 350 U. S. 1007 (1956); and State v. Clifton, 172 So. 2d 657 (La. 1965). In State v. Lea, supra, it was said at p. 170: “As we take it, the defendant is contending that he has been discriminated against by the exclusion of a race or class of persons to which he does not belong. In our review of the decisions of this Court and the Supreme Court of the United States, we do not find any case wherein the verdict of a jury was reversed on the ground of systematic exclusion of a class or race except where the accused was a member of that class.” The Supreme Court of the United States has never actually passed on the question. In Fay v. New *280 York, 332 U. S. 261 (1947), the Court pointed out that It had “never entertained a defendant’s objections to exclusions from the jury except when he was a member of the excluded class,” and it has not done so since. \

While it was said in Allen v. State, 137 S. E. 2d 711 (Ga. App. 1964), that the selection of “jurors from a group or portion only of those available for service in that office, rather than from those available without discrimination, does not accord to any defendant the type of jury to which the law entitled him,” it must not be overlooked that the white defendant in that case was active in voter registration among Negroes and so would have been prejudiced by being tried by a jury from which Negroes were excluded.

I would have reversed the lower court instead of affirming it.

Judge Barnes agrees with the principles of law herein stated.