Auchincloss v. State

Henderson, J., delivered the opinion of the Court. The appellant was tried and convicted by a jury in the Circuit Court for Calvert County on a charge of abortion, and sentenced by the court to three years in the Maryland Penitentiary and to pay a fine of $500. The first error assigned is in the refusal of the court to order a change of venue. In his petition the appellant alleged that he could not have a fair and impartial trial in Calvert County because he was engaged in the real estate business in that county and was one of the founders of a newspaper published there; that as business manager of that paper he was “widely known throughout said county as being connected with said local newspaper * * * which has conflicted with business and political interests in Calvert County”.

The docket entries show ³¹⁴ that the petition was opposed by the State and that there was a hearing thereon, but the transcript does not show what, if any, evidence was presented in support of the petition. Article 4, Section 8 of the Maryland Constitution, in regard to cases not involving a capital offense, provides that “it shall be necessary for the party making such suggestion to make it satisfactorily appear to the court that such suggestion is true, or that there is reasonable ground for the same”. We cannot find, on the bald allegations of the petition, that the court abused its discretion. The mere fact that a local newspaper, of which the accused was business manager, had “conflicted with business and political interests”, would not conclusively establish that the accused could not have a fair trial in that county, even if it could be said to make out a prima facie case. “In the absence of evidence to show that the court below acted arbitrarily and abused or refused to exercise the discretion given it by the amendment, this court cannot say that the removal should or should not have been granted, and can only affirm the action of the lower court.’” Downs v. State, 111 Md. 241, 248 , 73 A. 893, 895 .

See also Alters v. State, 144 Md. 75, 78 , 124 A. 399 and Newton v. State, 147 Md. 71, 77 , 127 A. 123 . The appellant next contends that the trial court erred in not directing a verdict for the defendant “of its own volition”. He admits that there was no motion for directed verdict, but contends that “if there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt, the court should direct a verdict in favor of the defendant.” He also asks that we review the jury’s error in returning a verdict against the evidence and the weight of the evidence. Of course we cannot substitute our findings for those of the jury.

As pointed out in Shelton v. State, 198 Md. 405, 412 , 84 A. 2d 76, 79 , although the jury in a criminal case is still the judge of the law as well as the fact in ³¹⁵ Maryland, by amendment to Article 15, Section 5 of the Constitution of Maryland, effective December 1, 1950, “the court may pass upon the sufficiency of the evidence to sustain a conviction”. The exception does not in terms confer a right of appeal, but by Section 655A, Article 27 of the Code, as enacted by Chapter 596, Acts of 1949, it is provided that “at the conclusion of the evidence for the State the accused may request an instruction that the evidence is insufficient in law to justify his conviction. If the instruction is refused, he may offer evidence on his own behalf without having reserved the right to do so, but by so doing, he withdraws his request for such instruction. The request for such an instruction may be renewed at the end of the whole case.

If such an instruction is refused the defendant may appeal from such ruling to the Court of Appeals of Maryland”. The procedure specified in the statute is repeated in Rule 5A of the Criminal Rules of Practice and Procedure, with a provision that authorizes the court to instruct a verdict of not guilty, to be entered by the Clerk rather than rendered by the jury, where such an instruction is granted. It is perfectly clear from the constitutional amendment and the supplementary statute that appellate review is predicated upon the refusal of an instruction offered and a ruling thereon by the trial court. In this respect the statute and the rule follow the analogy to Rule 9 of the Rules Respecting Appeals, of long standing and general applicability, and Rule 4 of the Trial Rules of Practice and Procedure applicable in civil cases.

Cf. Wright v. Baker, 197 Md. 315, 319 , 79 A. 2d 159, 161 , Smith v. Carr, 189 Md. 338, 339 , 56 A. 2d 151 and Schley v. Merritt, 37 Md. 352, 360 . In the absence of any request for an instruction there can be no review of the sufficiency of the evidence. Since the question is not before us, we deem it unnecessary to discuss the State’s contentions that the appellant has failed to print in his appendix material evidence to support the convic ³¹⁶ tion, and that there is abundant evidence in the record to take the case to the jury.

It is hardly necessary to add that in no event could this court undertake to pass upon the