Montgomery County sentinel. [volume] (Rockville, Md.) 1855-1974, 1893-01-20
Important Decision.

Important Decision.
Iu the Court of Appeals, on the 18th
instant, the following decision was rendered
in which the lawful manner of drawing
juries in this State is plainly set forth The
decision is likely to affect numerous cases
in the several counties and is of much in
terest to the general public, 1t was handed
down by Justice McSherry;
John W. Avirett vs., The State of Mary
land. The appellant was indicted by the
grand jury of Allegany county for libel.
There were five counts in the indictment.
To every count demurrer was filled The
demurrers were overruled, and thereupon
three pleas in abatement were pleaded, 70
the second and third the State demurred. Tue
first was traversed and issue was joined.
The points were decided in favor OF the State,
and the appellant entered plea OF not
guilty" without waving his demurrers,
and after some further proceedings he sub
mitted the case to the court under these cir
cumstances. The article was published in
his paper, the Times, of Cumberland, whilst
he was absent, and he consented to submit
the case to the court, after agreement with
the States counsel, and with the under
standing that the court was party TO it,
and that nominal fine would be imposed.
After the court had found the appellant
guilty, it Judge Stake said il was not a
party TO the agreement and imposed fine
of 5000 en- Mr.. Avrett and sent him to Jail
for three months. A motion was immedi
ately made TO strike out the judgment and
testimony. The motion was denied and an
appeal was taken. The question is whether
upon that appeal the demurrers to the in
dictmect are open for examination.
The court says the act of 1899, CHI 500, oh.
liberated all distinctions between appeals in
civil and criminal cases, and that the court
cannot hear demurrers to indictments and
exceptions to evidence in criminal cases ON
one record and on one appeal. This br ngs
up the sutficlency of the indictment. The
article was reproduction of one from the
New York Herald, which charged there
could be no publication in the administra
ton of justice in that city, and enforcement
of the minor and Sunday liquor laws so long
as there was a corrupt combination OF per-
sons about the court house in league with
keepers OF dens of vice and violators of the
law. This WAS applied to the situation in
Cumberland and was considered to deiame
Judge Harry w. Hoffman and other officers
of the court in Allegany county. Now
taken by itself" says the court, land with.
out reference to the lnducement or the col.
loquium, the article alleged TO be libelous
does not assail Judge Hoffman at all, The
PLAIN the obvious and the natural import Of
its language, as quoted in the indictment, Is
applicable alone TO the States Attorney. The
words public servants" cannot be made TO
include and mean Judge Hoffman. This is
well illustrated by the case put by Low, G.
| lanGfnan 70 SAlnmnD v
1t follows first, that the article is not, on
its face, libel on Judge Hoffman, aud
secondly, that 1t cannot by any inducement,
colloqulum, or nnuendo, be made to in
clude him, because 1t is applicable only TO
the states attorney AS consequence the
first count of the indictment is bad, and the
demurrer to il should have been sustained
The third and fourth counts are bad, Tor the
same reasons. The fifth count is bad be.
cause it Joins Judge Hoffman, the sheriff
and the clerk, to whom the libel does not
refer, with the states attorneys name The
second count was good. The State con-
tended that the count being good, the YER
dict should stand, but the court says: Fore.
ing him (the appellant despite his demurrer,
into trial upon counts which were bad and
each one OF which he had assailed was a
prejudical error that no general verdict could
cure, notwithstanding there was one good
count in the indictment. The court says II is
here confronted by the case of Gibson vs..
State, "a Md, 447, which decides fatty to
the contrary,
Section 10 of article of the Code provides
that no judgment or verdict shall he re-
versed ii there be one good count in the
declaration. This obviously relates only to
civil cases, and has no application whatever
to indictments The first plea in abatement
presents "a most important question. Section
7, article 81, Code, requires the court TO
notify attorneys through the crier5 that The
jury is to be drawn, and IL shall be drawn in
public, aud from names selected from the
tax list and poll books. Judge Hoffman
testified he brought the list Of 300 with him
TO the drawing, and consulted the books to
ascertain If they were correct. The Court of
Appeals decides that this is not compliance
with the law. The person who shall make
the selection is the judge, and no one else !;
the selection is to be made publicly, in the
presence of the members of the bar, If they
attend after notice, and the poll books and
the tax list are the two exclusive sources
from which the judge can procure the names
to be placed in the jury box. The selection
must be made by him with special reference
to the intelligence, sobriety and Integrity OF
luG JtIHOu CnNSCH' u bhG IuuSJ DldCCo III
the box names suggested to him, it IL not
his list. lie may seek information as To per-
sons 1t would be a lasting reproaGh 10 the
administration Of justice if the courts sane
toned any construction Of this statute which
would afford the slightest opportunity for
the cunning, the crafty and the unscrupu
ous to secure the selection Of a vena, u cor
rupt or pliable jury" AS the graul jury
were not selected and drawn according 10
law, the presentment and indictment found
by them against the appellant were absD-
lutely null. AS TO the motion TO dismiss the
appeal because other proceedings hal b;en
taken after the appeal and the motion to
strike out judgment followed, the court con.
siders the point not well taken. judgment
reversed without awarding a new trial
His opinion Is remarkable first in reVers.
ing settled procedure, as TO counts in an
indictment, and secondly in absolutely pro
hibitng judge TO receive suggestions, rs TO
whom he shall put 10 the jury box, from
whom TO draw the jurors.