Smith v. State, 44 Md. 530

Smith v. State

44 Md. 530 | Md. | 1876

Bowie, J.,

delivered the opinion of the Court.

The appellant was indicted on the 9th of November, 1875, in the Criminal Court of Baltimore, for violating the provisions of the Code of Public General Laws, relating to lotteries.

On the 18th of December following, he filed a suggestion in writing, that he could not have a fair and impartial trial in that Court, and prayed the record of the case might be removed to some adjoining Circuit for trial, with an affidavit that the suggestion was true, annexed. The Court after argument, overruled the motion for removal on the 20th of December, when the accused prayed an appeal. On the 4th of January, 1876, the accused tendered his bill of exceptions setting out the preceding facts, and prayed an appeal.

*533The appellant insists that being indicted prior to the amendment of the Constitution, qualifying the right of removal in certain specified criminal cases, he was entitled to a removal of his case absolutely, upon filing his suggestion and affidavit, according to the original provisions of section 8, Art. 4. The State on the other hand maintains, that the amendment submitted by the Act of 1874, ch. 364, and adopted, as proclaimed by the Governor on the 15th of November, 1875, required the party making the suggestion, “to make it satisfactorily appear to the Court, that such suggestion is true,” which condition was not complied with. The appellant contends, that this amendment restricts, if it does not actually take away the right of removal in criminal cases, and cannot operate retrospectively on vested rights.

Preliminary to the consideration of the main question, the State excepts to the jurisdiction of this Court, because the Act of 1872, ch. 316, conferring the right of appeal in criminal cases, requires the bill of exceptions to be taken at the trial, whereas the bill of exceptions in this case, was taken before the appellant had pleaded.

This objection we think is well taken.

An application for the removal of a cause, must always be made before the trial commences. Its very object is to have a trial in some other Court. Hence it has been held that the right of removal must be exercised before the trial or any part of the trial is had in the Court ordering the removal. The trial can only be said to commence in contemplation of the law regulating removals, when the jury is impanelled. Price vs. The State, 8 Gill, 302.

The appellant has mistaken the mode of bringing the question of the right of removal before this Court, in filing his bill of exceptions, instead of filing his petition assigning errors, in lieu of a writ of error. The right of removal, although a highly cherished adjunct to the trial by jury, is not one of those inalienable natural rights which cannot be regulated or modified by positive law.

*534The power to remove causes from one county to another, was an acknowledged part of the ordinary jurisdiction of the Court of King’s Bench in England, but in this State, it has been regulated by legislative and constitutional provision. Vide Price vs. The State, 8 Gill, 302. After it became a constitutional right, it was held, the Legislature by ordinary legislation, could not restrain but might enlarge it. Yet it has always been subject to be modified by constitutional amendment.

By the 8th section of Art. 4 of the Constitution of 1867, the Judge, etc., was required to order and direct the record of proceedings, in any suit, action or indictment, pending in such Court, to be transmitted to some other Court, etc., having jurisdiction in such cases, whenever any party to such cause or the counsel of any party, shall make a suggestion in writing, supported by the affidavit in writing of such party or his counsel, or other pro]3er evidence, that the party cannot have a fair and impartial trial in the Court in which such suit, etc., is pending.

This section was amended by an Act of the Legislature of the session of 1874, ch. 364, adopted by the people as per proclamation of the Governor on the 15th November, 1875. This amendment provides “that in cases of presentment or indictment, other than for offences which are or may be punishable by death, pending in any of the Courts of law in this State, having jurisdiction thereof, in addition to the suggestion in writing of either of the parties to such presentment or indictment, that such party cannot have a fair and impartial trial in the Court in which the same, may he pending, it shall be necessary for the party maJcing such suggestion, to malee it satisfactorily appear to the Court that such suggestion is true, or that there is reasonable ground for the same, and thereupon the said Court shall order and direct the record of proceedings, etc., to be transmitted.”

*535(Decided 12th May, 1876.)

The power which conferred the right of removal had ample authority to modify its exercise, or alter or change it in pending cases.

This amendment of the Constitution was in ful] operation before the appellant’s suggestion was filed. It qualified the preceding absolute right and made it conditional.

It was the duty of the appellant to comply with the reasonable restrictions imposed or forego the privilege.

The most jealous advocate of constitutional privileges* or vested rights, cannot discern the remotest trace of retroactive legislation in these proceedings.

If the appeal had been well taken, or a petition assigning errors filed, the Court would have affirmed the action of the Court below, but for want of jurisdiction the appeal must he dismissed.

Appeal dismissed.