Fountain v. State of Maryland

⁸⁸ Pattison, J., delivered the opinion of the Court. Isaiah Fountain was, in the month of April, 1919, convicted in the Circuit Court for Talbot County of the crime of rape and sentenced to be hanged. An appeal was taken therefrom to this Oourt, which was heard at its April term, 1919, and decided on the llth day of July thereafter. The judgment was' reversed, a new trial was awarded and the case remanded to the Circuit Court for Talbot County for trial.

The appellant subsequently, on the 23rd day of July, 1919, filed a suggestion, supported by affidavit, that he could not have a fair, and impartial trial in the Circuit Court for Talbot County, and prayed that this Court “order and direct the Clerk of the Circuit Court for Talbot County to transmit a copy of the record in said cause to the Clerk of the Criminal Oourt of Baltimore, with an order to such Court directing it to proceed in such action and to a new trial thereof'in the same manner as if no trial had taken place, and as if such action had been originally instituted in said Court.” ■This application was made, as stated in the petition, upon the provisions of Section 23 of Article 5 of the Code of Public General Laws of this State, which provides that “when, on the reversal of a judgment, a new trial shall be awarded, the Court of Appeals, upon suggestion in writing by either of the parties, supported by affidavits or other proper evidence that a -fair and impartial trial cannot be had in the Oourt where the judgment so reversed shall have been rendered, shall direct their clerk to transmit a copy of the record to the clerk of the court of some other county or city, with an order to such court, directing them to proceed in such action, and" to a new trial thereof, in the same manner as if no trial had taken place, and as if such actioii had been originally instituted in such court.” The above quoted statute, in 'the opinion of this Court, does not apply to a case like the one before us. The present Constitution of this State, as well as the earlier "Constitutions, provides for the removal of cases. ⁸⁹ In Section 2 of Chapter 55 of the Acts of 1804, by which the Constitution of 1776 was amended, it is provided that “in any suit or action at law * * * instituted in any county court of this State, the judges thereof, upon suggestion in writing, by either of the parties thereto, supported by affidavit, or other proper evidence, that a fair and impartial trial cannot be had in the county court of the county where such suit or action is depending, shall and may order and direct the record of their proceedings in such suit or action to be transmitted to the judges of any county court within the district, for trial,” etc. In Section 3 thereof, it is further provided that “if any party presented or indicted, in any of the county courts of this State, shall suggest, in writing, to the court in which such prosecution is depending, that a fair and impartial trial cannot be had in such court, it shall and may be lawful for the said court to order and direct the record of their proceedings in the said prosecution to be transmitted to the judge of any adjoining county court, for trial,” etc.; and by Section 4 it is provided that “if the attorney general or the prosecutor for the State shall suggest, in writing * * * that the State cannot have a fair and impartial trial in such court, it shall * * * order and direct the record of their proceedings * * * to be transmitted to the judges of any adjoining county court for trial.” The General Assembly of Maryland, at its January Session, 1819 (Act of 1819, Chapter 149), passed what is now Section 23 of Article 5, upon which the appellant seeks the-relief prayed for in his application or petition. It will be observed that in the above stated provisions of the Constitution suits and actions at law are treated and dealt with separately and distinctly from criminal prosecutions, and it may well be inferred from such separate