Downs v. State

Thomas, J., delivered the opinion of the Court. The record' in this case contains nine indictments against the appellant, filed at the January Term of the Criminal Court of Baltimore City, numbered 698 to 706, inclusive, and in each indictment he is charged, in the first count, with the larceny of money belonging to the Mayor and City Council. of Baltimore, and, in the second count, with receiving the money, knowing it to have been stolen. ²⁴³ On the 23rd of April, 1909, the appellant was arraigned in each of these cases and pleaded “not guilty,” and on the same day, as shown hy the docket entries, filed in case No. 698 the following petition, supported by his affidavit: William E. D„owns, the defendant in the above cause, respectfully suggests that he cannot have a fair and impartial trial in this Honorable Court, and accordingly prays that an order may be passed directing th^, record of said cause to be transmitted to some other Court for trial. And the said William E. Downs further respectfully shows to the Court that he is advised that there is intense prejudice and bitter feeling prevailing against him throughout the City of Baltimore in connection with the charge for which he stands indicted; that in the newspapers of Baltimore City, accounts have been published from time to time regarding the larceny with which the said William E. Downs is charged, and in which accounts it has been unqualifiedly and repeatedly represented that this defendant is guilty of said charge; that he has agreed to confess his guilt, and that Honorable Albert S. J. Owens, State’s Attorney for Baltimore City, in interviews said that he will convict Downs, as,the proof is positive; that said newspaper accounts are prejudiced, sensational and false, but that nevertheless said accounts are composed largely of public interviews, statements, editorials and caricatures.' Detectives, police, city and State officials and any number of taxpayers of Baltimore City who are interested in the prosecution of this defendant, and who by various prejudiced assumptions and diverse comment have so affected the minds and the feelings of the people of Baltimore City generally as to cause virtually universal bias, bitterness and enmity against this defendant throughout the said city, and to cause general prejudgment in the case of the defendant adverse to him so as to render it impossible for him to secure a fair and impartial trial in said city or to have testimony which may be adduced during the trial of his case weighed and passed upon in an unprejudiced, dispassionate and just manner by any jury which may be impannelled in the City of Baltimore to determine this defendant’s innocence or guilt. And in connection with the foregoing the said William E. Downs, defendant, prays respectfully to refer the Court to said ²⁴⁴ newspaper accounts excerpted from all newspapers of Baltimore City possessing any considerable circulation, said accounts being filed herewith and marked “Defendant’s Exhibit No. Two” and prayed to be taken as part hereof.

And as in duty bound, etc., Harry B. Wolf, Attorney for Defendant. With -this petition the appellant also filed seventeen affidavits, each stating that the affiant, for the reasons assigned in the affidavit, believed that the prisoner could not obtain a fair and impartial trial in Baltimore City, and numerous clippings from the newspapers of Baltimore City. The record also shows that the Court heard the petition, and argument of counsel for the appellant in support thereof, and from the remarks of the Court in passing on the petition, which are set out in full in the record, it is apparent that the Judge presiding fully considered the reasons assigned in the various affidavits, and the effect of the publication of the articles, etc., contained in the newspaper clippings, and refused to remove the case because it did not satisfactorily appear that the appellant could not have a fair and impartial tidal in said Court. On the petition of the prisoner the record’ in the case was transmitted to this Court for the purpose of having the action of the Court below, in refusing to grant a removal of the case, reviewed.

The Constitution of 1851, section 28 of Art. 4, provided that: “In all suits or actions at law,” etc., pending or thereafter instituted, in any of the Courts of law of the State, “the judge or judges thereof, upon suggestion in writing, if made by.the State’s attorney, or the prosecutor for the State, or upon suggestion in writing, supported by affidavit made by any of the parties thereto, or other proper evidence, that a fair and impartial trial cannot be had in the Court where such suit or action at law, issues or petitions, or presentment and indictment is depending, shall order and direct the rec ²⁴⁵ ord, etc.,” “to be transmitted to the Court of any adjoining-county.” In reference to this provision, the Court in the case of Griffin v. Leslie, 20 Md. 15 , said wherever and whenever the privilege of removing a case has come under consideration, it has been construed liberally, and, quoting from an earlier case, that: “All laws for the removal of causes from one venue to another, were passed for the purpose of promoting the ends of justice, by getting rid of the influence of some local prejudice which might oqierate detrimentally to the interests or the rights of one or the other of the parties to the suit. The condition prescribed by the Constitution and Acts of Assembly for the exercise of this right, being complied with by the party applying for it, there is no discretion in the tribunal to which it is made, to decide whether the application shall be granted or not.” By the Constitution of 1864, section 9, Art. 4, it was provided that: “The Judge or Judges of any Court of this State, except the Court of Appeals, shall order and direct the record of proceedings in any suit or action, issue or petition, presentment or indictment pending in such Court, to be transmitted to some other Court in the same or any adjoining-circuit having jurisdiction in such cases, whenever any party to such cause, or the counsel of any party shall make it satisfactorily appear to the Court that such party cannot have a fair and impartial trial in the Court in which such suit or action, issue or petition, presentment or indictment is pending,” etc. We do not find any case dealing directly with this provision of the Constitution of 1864, which’ was changed by the Constitution of 1867, adopting, so far as the feature with which we are now dealing is concerned, substantially the provision of the Constitution of 1851, but in the case of Hoyer v. Colton, 43 Md. 421 , Judge Robinson, referring to the provision of the Constitution of 1867, said: “The obvious purpose of this provision was to secure to every one a fair and' impartial trial, by getting rid of the influence of local ²⁴⁶ feeling and prejudice; and whenever the privilege has come under consideration, it has been liberally construed. State v. Dashiell, 6 H. & J. 268 ; Negro Jerry v. Townshend, 2 Md. 278 ; Griffin v. Leslie, 20 Md. 15 . However much the right thus conferred may have been, or may hereafter be abused, the exercise of it has been considered so essential to the proper administration of justice as to be made the subject of constitutional provision in every Constitution adopted in this State since 1851; and in no previous Constitution, has it been more securely protected than in the present Constitution.

"Whilst under the Constitution of 1864, it was necessary for the party making the application for removal to satisfy the Court by proper evidence that fair and impartial trial could not be had in the Court in which the cause was pending, the present Constitution confers the right in every case, civil or criminal, upon the mere suggestion and affidavit of the party. No discretion is vested in the Court; and the only power conferred upon the Legislature is To make such modifications of existing laws as may be necessary to regulate and give force to this provision.’ The nature and extent of the power thus conferred, was considered by this Court in Price v. Nesbitt, 29 Md. 264 , and it was held that the Legislature might enlarge but could not in any manner impair or restrain the right.” It was doubtless because of some abuse of the unqualified privilege of removal provided for in the Constitution of 1867 (see case of Cooke v. Cooke, 41 Md. 362 ), that the people-adopted, November 15th, 1875, the amendment proposed by the Act of 1874, Ch. 364 (Code of 1904, pages 142-143, and sec. 102 of Art. 75), by which it is provided that in all criminal cases, other than “cases of presentments or indictments for offences which are or may be punishable by death” — “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 be pending, it shall be necessary for the party making such suggestion to make it satisfactorily appear to ²⁴⁷ the Court that such suggestion is true, or that there is reasonable ground for the same.” By this amendment the Courts are again given the discretion in all criminal cases, except where the offence is punishable by death, provided for in the Constitution of 1864, and referred to by Judge Robinson in the case ”of Hoyer v. Colton, a nd in the case of Smith v. State, 44 Md. 530 , where the traverser was indicted on the 9th of November, 1875, and, on the 18th of December following, filed a suggestion for removal from the Criminal Court of Baltimore City,, with an affidavit that the suggestion was true, and that Court after argument overruled the motion for removal, this Court held that as the amendment adopted on the 15th of November, 1875, was in full force when the suggestion was filed, and he had failed to make it satisfactorily appear to the Court below that his suggestion was true, etc., even if