In Re Petition for Writ of Prohibition

ADKINS, Judge. At issue here is this Court’s power to issue one of the extraordinary writs—mandamus or prohibition—to a circuit court judge. The State asks us to issue one of the writs because the circuit court judge granted a jury-convicted ²⁸³ defendant’s motion for new trial, an action from which no appeal lies. Dean v. State, 302 Md. 493, 499-500 , 489 A.2d 22, 25-26 (1985).

If we can cross that threshold, a second question is whether a circuit court judge may grant a new trial in a criminal case, thereby setting aside the jury’s verdict, because the judge does not credit the testimony of the chief prosecuting witness. And if we conclude that we have authority to issue one of the extraordinary writs, we also must decide whether this is a case in which an extraordinary writ should issue. To set the stage for our consideration of these matters, we recount the earlier proceedings in this case. I. Background On 19 and 20 May 1986 Paul Joseph Katz was tried by jury in the Circuit Court for Montgomery County (Miller, J., presiding) on charges of attempted robbery with a dangerous and deadly weapon, assault with intent to rob, and simple assault.

At the close of the State’s case, and at the close of all the evidence, Katz moved for a judgment of acquittal. Judge Miller denied the motions. The jury returned a verdict of guilty on all counts. Katz moved for a new trial on five grounds.

The first four grounds may be summarized as involving unfair surprise, newly discovered evidence, improper jury instructions, and jury misconduct. Katz also alleged that the jury verdict was “contrary to the evidence,” and, in effect, that it was against the weight of the evidence. He based these allegations in large part on the State’s failure to call Rodney Hall, the victim, as a witness. On 28 July 1986 the new trial motion was considered.

After arguments by counsel Judge Miller discussed Katz’s first four grounds and found no error justifying the grant of a new trial. Neither counsel nor the judge specifically addressed the “contrary to the evidence” argument, but in granting the new trial motion, the judge went on to say, The only question the Court has is whether or not the Court ought to exercise its discretion in granting a new ²⁸⁴ trial, or whether the Court feels in any way that some injustice may have been done, and whether this is an appropriate case to exercise that discretion. There are some things, and certainly through no fault of the State, is the inability of the State or the defense to produce Rodney Hall. The State had to rely upon the testimony of Brian Conway.

It became a question for the jury basically of the credibility of Brian Conway as against the credibility of Paul Katz. The jury after considerable deliberation decided that it apparently felt that Mr. Conway’s testimony was more credible, and that Mr. Katz’s testimony should not be given credence. As I indicated, there are some matters that do disturb the Court____ Given all matters in this case, and as reluctant as the Court is to upset or disturb a jury’s finding, there [are] enough things that do disturb me that I feel that I am going to give the defendant a new trial. The Assistant State’s Attorney requested that the judge place his reasons for granting the motion on the record.

The judge replied: I just think that there are enough things that disturb me as to whether or not there is at least a possibility of some injustices. It in no way involves the State’s conduct in the matter. There is no impropriety on the basis of the State in this case. I just feel that it is a disturbing case, one that disturbed me about the verdict, and given that fact I am going to exercise my discretion in granting a new trial.

On 19 February 1987 the court heard argument on the State’s motion to reconsider the order granting a new trial. Judge Miller clarified his reasons for that action. What truly troubles me is I was faced with the prospect of sentencing somebody that I was not convinced was guilty. I understand, and I do not substitute my judgment for the jury, and I do not know—new trial I have granted.

It certainly [is] no reflection on the State, as I ²⁸⁵ indicated, nor is it on anything the State has done or the jury. I understand it was a credibility issue, but that is the posture that I was in, and I have some grave reservations about what has happened, and it is a matter of [conscience] and I do not like to substitute my judgment for the jury, but they do not have to sentence Mr. Katz, and I did, and it troubled me. The case troubled me, it still does. If another jury convicts him, and if somebody else has to sentence him, that is fine, but I just—it just troubles me too much, and that is the reason that I granted a new trial. jjc sfc * sjt :¡< Sc ...

I guess to some extent the judge is a 13th juror in some cases, and that should not be in many, but in this one I think it is appropriate, and I just felt that—given all things considered, I am not prepared to sentence, and I think he ought to have a new trial. I did then and I do now. As I say, I cannot articulate [a] good reason, but I just feel that it is appropriate. The State, conceding it cannot appeal the new trial order, petitioned this Court for “a writ of prohibition and/or a writ of mandamus ... directing [Judge] Miller to vacate the order granting a new trial ... and to proceed with the sentencing of Katz____” II.

Prerogative or Power to Issue Extraordinary Writs The State asserts that our authority to issue a writ of mandamus or prohibition arises from what it characterizes as our supervisory or superintending power over lower courts—a power it believes to involve an exercise of appellate as opposed to original jurisdiction. Additionally, the State points to Art. IV, § 18, of the Maryland Constitution concerning the rule-making authority of this Court and establishing the Chief Judge as “administrative head of the Judicial system of the State.” Katz, on the other hand, denies that Art. IV, § 18, confers superintending control over the judicial decisions of lower courts, and avers that ²⁸⁶ the power to issue prerogative writs, under the circumstances of this case, involves the exercise of original jurisdiction—a jurisdiction this Court lacks. Before we review these arguments in detail it will help to examine, in summary fashion, the history and nature of mandamus and prohibition at common law. A. The Common Law Writs of Mandamus and Prohibition A writ of mandamus is, in general, a command issuing in the king’s name from the court of king’s bench, and directed to any person, corporation, or inferior court of judicature, within the king’s dominions, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the court of king’s bench has previously determined, or at least supposes, to be consonant with right and justice.

It is a high prerogative writ, of a most extensively remedial nature ____ 3 W. Blackstone, Commentaries on the Laws of England 110 (facsimile ed. 1768; hereinafter Blackstone) [emphasis in original]. The same author describes prohibition as a writ issuing properly only out of the court of king’s bench, being the king’s prerogative writ ... directed to the judge and parties of a suit in any inferior court, commanding them to cease from the prosecution thereof, upon a suggestion that ... the cause ... does not belong to that jurisdiction, but to the cognizance of some other court____ [The writ also may issue] if, in handling of matters clearly within their cognizance, [the inferior courts] transgress the bounds prescribed to them by the laws of England____ Id. at 112. These writs were two of the common law prerogative or ²⁸⁷ extraordinary writs 1 that issued out of the Court of King’s Bench. And the evolution of that court tells us much about the writs themselves, and the power of a court (absent constitutional or statutory authority) to issue them.

In its earlier days at least, the King actually sat in the Court of King’s Bench, as by later fiction he was supposed to have done. 1 W. Holdsworth, A History of English Law 207 (7th ed. 1956) (hereinafter 1 Holdsworth). Moreover, in the medieval period, the court was closely connected with the Council. Id. at 209. “[T]he Curia Regis was a large undifferentiated court, composed both of the leading nobility lay and spiritual and of royal officials, by means of which the king carried on all the business of the central government—-judicial, legislative, and executive.” Id. at 477 [footnote omitted]. The notion of separation of powers—even today somewhat foreign to British constitutional law—simply did not exist.

Thus this body exercised broad supervisory authority over subordinate officials, judicial and otherwise, probably without paying much heed to whether a particular act of supervision was judicial or administrative in nature. It exercised this authority in part through the prerogative writs. Id. at 226. As time passed and government became more sophisticated, or at least more complex, these arrangements began to change.

Thus, towards the end of the 14th Century, the Council was becoming “more especially the organ of the executive side of the government, and Parliament of the legislative side; while the court of King’s Bench was tending to become simply a court of common law, which was concerned with the judicial side of government.” Id. at 210 [footnote omitted]. But despite this metamorphosis, the court preserved both in its style and in its jurisdiction traces of the days when it was a court of a very different kind. In ²⁸⁸ its wide powers of control over other courts and officials, and in its wide criminal jurisdiction, it retained powers of a quasi-political nature which came to it from the days when the court held coram rege was both King’s Bench and Council. Id. at 211.

Thus when King’s Bench became established as a common law court, it had original jurisdiction and appellate jurisdiction in both civil and criminal cases. And it had “a general superintendence over the due observance of the law by officials and others.” Id. at 212. As we have seen, it was generally in the exercise of this power that it issued the prerogative writs. In the 16th and 17th centuries, for instance, “[b]y means of these [prerogative] writs ... [and by other means] the doings of the justices of the peace, of the borough Courts, of courts leet, and of parishes were frequently controlled; and rules were laid down for the guidance of these authorities on points of law and procedure.” 5 W. Holdsworth A History of English Law 420 (3d ed. 1945).

B. Mandamus and Prohibition in Provincial Maryland The 17th century, of course, brings us to the Province of Maryland and affords us an opportunity to glance at relevant aspects of our pre-revolutionary governmental structure. In that period judge-made common law prevailed to some degree in Maryland, subject to such Provincial legislation as was enacted, and to pertinent acts of Parliament. In those early days, arrangements were not unlike those in medieval England. The Governor sat with his Council and this body performed administrative, legislative, and judicial functions.

C. Bond, The Court of Appeals of Maryland 1-3 (1928) (hereinafter Bond). 2 By 1638, the Governor and ²⁸⁹ Council were sitting as a county court, which by 1642 was designated the Provincial Court. Id, at 3-4. After the division of the legislature into upper and lower houses in 1649, the upper house (the Governor and Council) exercised the highest appellate authority in the province. Id. at 3.

But the Provincial Court “became the chief court of the province, regarded as the local equivalent of the Court of King’s Bench.” Id. at 4. Like King’s Bench, it exercised both original and appellate jurisdiction. Id. Pre-revolutionary sources show that the Provincial Court as well as the Court of Appeals issued the extraordinary writ of mandamus on occasion. 3 See Bordley v. Lloyd, 1 H. & McH. 27 (Prov.Ct., June Term 1709); Mitchells Adrs. v. Majsty (1715) reported in C. Bond, Proceedings of the Maryland Court of Appeals 1695-1729, 196-197 (1933).

But the cases themselves fail to discuss the source of the power to issue these prerogative writs. Post-revolutionary authorities, however, assert that the Provincial Court possessed the supervisory or superintending power of the Court of King’s Bench. In Kendall v. United States, 12 Pet. 524 , 9 L.Ed. 1181 (1838), for reasons not important here, it became necessary to decide whether the federal Circuit Court for the District of Columbia had the power to issue a writ of mandamus. Important to that determination was the question of whether Maryland courts had common law power to issue the writ in 1801.

Both the majority opinion of Justice Thompson, id. at 621 , 9 L.Ed. at 1219 , and the dissenting opinion of Chief Justice Taney, id. at 631-632 , 9 L.Ed. at 1223-1224 , concluded ²⁹⁰ that the Maryland General Court had that power. The General Court was the successor of the pre-revolutionary Provincial Court. See, Md. Const, of 1776, § 56; and see Bond, supra, at 58. What Chief Justice Taney had to say is instructive.

After discussing the power of King’s Bench to issue prerogative writs as an incident to its superintending power, Taney asserted that the Provincial Court possessed this power because its jurisdiction was co-extensive with the dominions of the lord proprietary and because the Provincial Court was to Maryland what King’s Bench was to England at common law. Kendall, 12 Pet. at 630-632 , 9 L.Ed. at 1223-1224 . In Taney’s view this power passed to the General Court in 1776. Id.

And this view is supported by Runkel v. Winemiller, 4 H. & McH. 429 (Gen. Ct. Oct. Term 1799). At issue in that case was whether the Reverend Mr. Runkel was entitled to a writ of mandamus to oust William Schneyder, who had allegedly usurped Runkel’s position as the lawfully installed minister of the “German or High Dutch Reformed Christian Church” at “Frederick Town.” Id. at 430-431 . The General Court held it had the power to issue the writ.

It explained: The Court of King’s Bench having a superintending power over inferior Courts of jurisdictions, may and of right ought, to interfere to supply a remedy when the ordinary forms of proceedings are inadequate to the attainment of justice in matters of public concern--- The position that this Court is invested with similar powers is generally admitted, and the decisions have invariably conformed to it; and whence the inference is plainly deducible, that this Court may, and of right ought, for the sake of justice, to interpose in a summary way to supply a remedy where, for the want of a specific one, there would otherwise be a failure of justice. Id. at 449 [citation omitted; emphasis supplied]. As we have seen the General Court was the successor to the Provincial Court; this, then, amounts to a statement that ²⁹¹ the Provincial Court had the superintending power and consequently the power to issue prerogative writs. 4 It also was Chief Justice Taney’s view that the Provincial Court possessed the supervisory or superintending power of King’s Bench. Kendall v. United States, supra, 12 Pet. at 629 , 9 L.Ed. at 1222-1223 .

If that is so, has that power, or any part of it, passed to this Court, and if so, by what means? If not, is there some other basis for our issuance of writs such as mandamus and prohibition? C. The Court of Appeals and Mandamus and Prohibition 1. Introduction From the preceding discussion we may assume that the common law power of. the Court of King’s Bench to issue prerogative writs was possessed by the Provincial Court and passed to the General Court.

This is consistent with the authorities we have cited and with the notion that the mandamus and prohibition powers ordinarily reside in the highest court of original jurisdiction. 5 F. Ferris, The Law of Extraordinary Legal Remedies, §§ 219, 220, 328 (1926). Whether this Court has that power is the question to which we now turn. ²⁹² Of course, a court may be granted mandamus or prohibition power by express constitutional or legislative grant. A court may also have that power if it exercises, by express grant or otherwise, the superintending powers of King’s Bench. Finally, there is authority to the effect that a court exercising appellate jurisdiction may issue the writs in aid of that jurisdiction.

Do any of these principles support the conclusion that this Court has authority to issue prerogative writs? We can quickly dispose of any notion of an express grant. The Maryland Constitution is silent as to any mandamus or prohibition power in this Court. The only general statutory provision dealing with mandamus jurisdiction is Md.Code (1984 Repl.Vol., 1987 Cum.Supp.) § 3-8A-01 of the Cts. & Jud.Proc.

Art.; it relates only to the circuit courts. 6 Nor is there any express grant of superintending power to this Court. 7 Whether we have, as the highest court of this ²⁹³ State, an inherent superintending or supervisory power over the courts below us in the judicial hierarchy, and whether any such power is implicit in Article IV, § 18 of the Maryland Constitution, are questions we reserve for another day. We need not and do not address them today because we hold that under the circumstances of this case we have the power to issue a writ of mandamus or a writ of prohibition in aid of our appellate jurisdiction. 8 2. Mandamus and Prohibition in Aid of Appellate Jurisdiction As the preceding sections (A and B) of this opinion show, certain courts, both in England and in Maryland, could issue writs of mandamus and prohibition in exercise of their original jurisdiction. We cannot claim the power to issue those writs on that basis, for we are a court of appellate jurisdiction only, as we have held consistently since Ex Parte O’Neill, 8 Md. 227, 229 (1855).

See Shell Oil Co. v. Supervisor, 276 Md. 36, 40-43 , 343 A.2d 521, 524-525 (1975); Board v. Attorney General, 246 Md. 417, 427 , 229 A.2d 388, 393 (1967). The cases are cited in Shell Oil, 276 Md. at 42 , 343 A.2d at 524 , where Judge Eldridge, for the Court, quoted Sevinskey v. Wagus, 76 Md. 335, 336 , 25 A. 468, 469 (1892) to the following effect: This Court is an appellate court, and is so styled in the Constitution; and no provision is made in that instrument for instituting or conducting any original proceedings ²⁹⁴ herein. The Constitution, Art. 4, sec. 14, in defining the jurisdiction of this court, declares, that “The jurisdiction of said Court of Appeals shall be co-extensive with the limits of the State, and such as now is or may hereafter be prescribed by law;” that is to say, such appellate jurisdiction as the court then had or might thereafter have conferred upon it. The court at the time of the adoption of the present [1867] Constitution had, under former Constitutions, appellate jurisdiction only; and the terms by which the jurisdiction is defined in the present Constitution, are substantially the same in meaning as those employed in the Constitutions of 1851 and 1864.

It would therefore seem to be clear that the jurisdiction of this Court is appellate only; for if not so, and the Legislature could confer original jurisdiction upon it in cases of habeas corpus, it could also confer such jurisdiction in cases of mandamus, or in cases of any other subject-matter of original jurisdiction. Shell Oil, 276 Md. at 41 , 343 A.2d at 524 [emphasis in original]. The touchstone of appellate jurisdiction is “an initial exercise of judicial power or authority by a court.” Shell Oil, 276 Md. at 42, 343 A.2d at 525 . That prerequisite, of course, exists in this case; the grant of Katz’s motion for a new trial was an exercise of judicial authority by the Circuit Court for Montgomery County.

We have seen at least one instance in which the Provincial Court of Appeals issued a writ of mandamus to a lower court; in Mitchells Adrs. v. Majsty (1715), supra, see text accompanying n. 3, the Court of Appeals issued the writ to the Provincial Court. The early Court’s appellate jurisdiction, together with power to issue extraordinary writs in aid of it, passed to our predecessor Court by virtue of § 56 of the Constitution of 1776, providing for “a court of appeals ... whose judgment shall be final and conclusive in all cases of appeal, from the general court, court of chancery, and court of admiralty____” The constitutional amendment proposed by Ch. 55, Acts of 1804 (ratified in 1805) was somewhat more specific: ²⁹⁵ Sec. 5. There shall be a court of appeals ... which ... shall hold, use, and exercise, all and singular the powers, authorities, and jurisdictions heretofore held, used and exercised by the court of appeals of this state, and also the appellate jurisdiction heretofore used and exercised by the General Court____ 9 The 1805 provision not only transmitted the appellate jurisdiction of the 1776 Court of Appeals; it transferred the appellate jurisdiction of the General Court. That court, like its predecessor, the Provincial Court and like the Court of King’s Bench, exercised both original and appellate jurisdiction, including the prerogative writ power, as we have seen.

Thus, by 1805, the Court of Appeals had not only the appellate jurisdiction of its own predecessor courts, but also that of the General Court, including the prerogative writ power that could be exercised in aid of that jurisdiction. It is true that on some occasions we had expressed doubts about the power to issue these writs. See, e.g., Henson v. State, 227 Md. 659, 660 , 180 A.2d 300, 301 (1962); Hendrick v. State, 115 Md. 552, 558-559 , 81 A. 18, 20 (1911). And in State v. Haas, 188 Md. 63, 76 , 51 A.2d 647, 653 (1947), we said, by way of dictum, that we could not issue a writ of prohibition.

But these cases involved what we characterized as efforts to seek writs pursuant to original jurisdiction as opposed to in aid of appellate jurisdiction. In Henson , for instance, we noted that the application before us was “in substance an original petition to this Court for a writ of mandamus to effect a purpose not related to the exercise of its appellate jurisdiction.” 227 Md. at 660 , 180 A.2d at 301 . And in State v. Rutherford, 145 Md. 363, 369 , 125 A. 725, 727 (1922), we flatly stated that “[i]t can be readily seen that cases may arise where, for the proper and complete exercise of its appellate jurisdiction, it may be necessary for ²⁹⁶ this Court to grant the writs of certiorari or mandamus, and the cases above cited do not mean to say, nor do we here decide, that this Court could not issue any appropriate writ in aid of its appellate jurisdiction.” More recently, in State ex rel. Sonner v. Shearin, 272 Md. 502 , 325 A.2d 573 (1974), we had occasion to discuss prerogative writs.

In that case a trial judge suspended a portion of a sentence in direct violation of a legislative command. We concluded that he erred in doing so. Id. at 519 , 325 A.2d at 582 . We held that the law as it then stood permitted the State to appeal from the imposition of an illegal sentence.

Id. at 526 , 325 A.2d at 586 . Therefore, we were not required to decide whether we possessed power to issue mandamus or prohibition in those circumstances, although the State had sought those writs by way of alternative relief. We did not reject the possibility of the availability of mandamus. Id. at 519-520 , 325 A.2d at 583 .

Speaking through Judge Smith, we were more positive as to prohibition: A lower court which thus exceeds its power [by imposing an illegal sentence] must be bridled by a court of last resort. Were it otherwise, mandates of the General Assembly could be defied with impunity and the only protection of the public would be the torturous process of judicial removal which would not have the effect of correcting the specific error. Therefore, if there were no right of appeal in this case, we would have no hesitancy in saying that we would act by issuance of the writ of prohibition. See Kardy v. Shook, J., 237 Md. 524, 544 , 207 A.2d 83 (1965).[ 10 ] Id. at 526 , 325 A.2d at 586 .

Still more recently, in Dean v. State, 302 Md. 493 , 500 n. 5, 489 A.2d 22 , 25 n. 5 (1985), we made it clear that so far as we were aware, this Court had never issued a writ of ²⁹⁷ prohibition, but we did not say we could not do so. We implied the contrary when we added that “[o]ur past history indicates that the writ would be used only in an extreme case.” Id. We offered no citation to that “past history,” but Thompson v. M’Kim, 6 H. & J. 302, 335 (1823), may be an instance of such an extreme case. It involved a stay issued by this Court as the functional equivalent of a writ of prohibition in aid of appellate jurisdiction.

We think it plain enough then that we have long recognized the availability of writs such as mandamus or prohibition, in aid of our appellate jurisdiction, even if we have almost never exercised the power to issue them. The problem lies in deciding what is “in aid of” our appellate jurisdiction. More specifically, does there have to be an appeal to this Court, or at least an appealable judgment, before we can issue a writ? In Haas, 188 Md. at 67 , 51 A.2d at 649 , we seemed to answer this question in the affirmative.

Dismissing a petition for common law certiorari, Chief Judge Marbury wrote for the Court: If we have jurisdiction to entertain an appeal in this case, then there is no occasion for the issuance of a writ of certiorari. The entire record is before us and we can pass upon all questions ready for our consideration. On the other hand, if an appeal does not lie then we have no power to originate a proceeding here by the writ of certiorari. See also Moore v. License Com.

Pr. Geo.’s Co., 203 Md. 502, 505-506 , 102 A.2d 272, 274 (1954). Thus, at least where there is an appealable judgment, this Court may issue process to avoid the possibility that judicial review will be frustrated. In Thompson v. M’Kim, 6 H. & J. 302 (1823), Chancellor Bland ordered Thompson to pay a large sum of money into court and the chancellor refused to stay the order pending appeal.

It was argued, indeed, that the order was not appealable at all, but our predecessors held otherwise. Id. ²⁹⁸ at 335. The question then became whether this Court had a common law power to issue a stay to the Court of Chancery. The Court ordered one.

Chief Judge Buchanan reasoned: it is manifestly necessary, to the ends of justice, that there should be a power in special cases to suspend proceedings on the matter appealed from____ [This power, like the same power in the House of Lords,] is necessarily incident to this Court, to preserve the usefulness of its appellate jurisdiction. If it were otherwise, cases might arise in which the appeal would be but as a shadow, pending which the substance might be lost. Id. at 333 . In Thompson , as we have noted, the issuance of a stay was the functional equivalent of the issuance of a writ of prohibition.

It was done to preserve the appeal, for if Thompson had had to pay the sum into court, he might not have been able to press the appeal and in any case, he would have been irreparably injured. 6 H. & J. at 334 . Going a step beyond Thompson are some decisions of the Supreme Court of Mississippi. In Mississippi, as in Maryland, the court of last resort has appellate jurisdiction only. There is no express grant of superintending power over inferior tribunals.

See Miss. Const., Art. 6, § 146 (1890). 11 And see, e.g., State v. Keeton, 176 Miss. 590, 595 , 169 So. 760, 762 (1936); White v. State, 159 Miss. 207, 211 , 131 So. 96, 97 (1930); Yazoo & Miss. Valley R.R. Co. v. Wallace, 90 Miss. 609, 614-615 , 43 So. 469, 470 (1907). In Mississippi there also is a statute—Miss.Code Ann. § 11-1-17 (1972)—under which if a trial judge has not rendered a decision within certain time limits, the party seeking the decision may appeal as if the decision had been rendered adversely to that party.

In Woods v. Lee, 390 So.2d 1010 (Miss.1980), ²⁹⁹ the trial judge failed for over a year to rule on a plaintiffs motion for judgment n.o.v. or a new trial. The plaintiff appealed. The supreme court held that no appeal would lie because a judgment adverse to the plaintiffs motion would not, under Mississippi law, have been appealable. But despite the absence of a viable appeal, it held that there was a remedy: mandamus to compel the trial judge to act.

Later came State v. Maples, 402 So.2d 350 (Miss.1981). There the judge in a criminal case refused to recuse himself. That decision was not immediately appealable. The State, which had sought the recusal, applied to the Supreme Court of Mississippi for a writ of prohibition, commanding the judge not to sit.

The Supreme Court of Mississippi issued the writ. It did so because in this context the function of prohibition, like that of mandamus, is to aid in the appellate process: The writ of mandamus is an aid to the appellate process because a superior court directs an inferior court to take some affirmative action so the action of the inferior court may be reviewed on appeal. A writ of prohibition is an aid to the appellate process by preventing action by an inferior court or judge which cannot be remedied on appeal. 402 So.2d at 353 . Although the court recognized that refusal to recuse is interlocutory and not immediately appealable, it pointed out that if it denied the writ, the State might never be able to obtain review of the question, because in the event of an acquittal, it could not appeal at all.

Id. In this way—by making possible the review of a potentially unreviewable question—prohibition aided the appellate process. In Glenn v. Herring, 415 So.2d 695, 698 (Miss. 1982), the Mississippi court summarized the development of this line of cases: Section 146 of the Constitution confers upon this Court appellate jurisdiction. Appellate jurisdiction, of necessity, includes issuance of such incidental procedural orders or writs necessary to enable this Court to fully exercise its ³⁰⁰ appellate jurisdiction.

At a very early age in the history of the Republic, the United States Supreme Court in Cohens v. Virginia, 6 Wheat. 264 , 5 L.Ed. 257 (1821), speaking through Chief Justice Marshall, recognized that, “[A] writ of prohibition or any other similar writ is in the nature of appellate process.” [6 Wheat, at 397, 5 L.Ed. at 289 .] Recognizing that writs of prohibition, writs of mandamus, or other similar writs are aids to the appellate process, we have held that this Court has jurisdiction to issue writs of mandamus and writs of prohibition to inferior courts as an aid to the appellate process____The writ of mandamus is an aid to the appellate process, because by it, the appellate court directs an inferior tribunal to take some action so its judicial decision may be reviewed on appeal [some citations omitted]. The Tennessee Supreme Court also is a court of exclusively appellate jurisdiction. See Tenn. Const.

Art. 6, § 2; State ex rel. Kain v. Hall, 65 Tenn. 3, 6 (1873). It has taken an approach similar to that employed by the Mississippi Supreme Court. In State ex rel Kain v. Hall, the court dismissed a petition for a writ of mandamus directed to an inferior court concluding that under the circumstances issuance would not have been proper.

Nonetheless, the court explained that it had the power to issue the writ in aid of its appellate jurisdiction: It was held ... that the Constitution of 1834 deprived the Supreme Court of all original jurisdiction; and ... that the legislature could confer no such jurisdiction upon it____ But it will issue an original process in aid of its appellate jurisdiction____ The jurisdiction of this court, then, to award the writ of mandamus is merely auxiliary to its appellate power. The jurisdiction it possesses, not by virtue of any statute, but under the common law, as inherent and necessary to the exercise of its functions as a court of appellate jurisdiction. ³⁰¹ Id. at 6 [emphasis supplied]. Also see ABA Standards on Judicial Administration, Standards Relating to Appellate Courts § 3.00 at 5 (Approved Draft 1977), explaining that [although used infrequently, the power to issue extraordinary writs to protect an appellate court’s jurisdiction, and to secure conformity to its mandates, is essential for maintaining the integrity of the legal system. Under generally recognized principles of law, that power is inherent and should be universally so regarded.

The notion that mandamus or prohibition may be used as an aid to appellate jurisdiction, even though there is no appeal pending in an appellate court, and even though no immediate appeal is possible, finds support in federal cases as well. Indeed, it was federal authority upon which the Mississippi court substantially relied in the trilogy of cases we have just reviewed. Early on, in Marbury v. Madison, 1 Cranch 137 , 2 L.Ed. 60 (1803), the Supreme Court of the United States, through Chief Justice Marshall, declared unconstitutional Section 13 of the Judiciary Act of 1789 ( 1 Stat. 53 , 58-59) which purported to give the Court power to issue mandamus to public officers. Chief Justice Marshall wrote: To enable this court, then, to issue a mandamus it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction.

Id. at 175 , 2 L.Ed. at 73 . And he defined appellate jurisdiction: It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper, is in effect the same as to sustain an original action for that paper, and, therefore, seems not to belong to appellate but to original jurisdiction. ³⁰² Id. at 175-176 , 2 L.Ed. at 73 . 12 As a consequence, Congress could not constitutionally authorize the Court to issue mandamus to the Secretary of State. See also, e.g., Chandler v. Judicial Council, 398 U.S. 74, 86 , 90 S.Ct. 1648, 1654 , 26 L.Ed.2d 100, 108-109 , reh’g denied, 399 U.S. 937 , 90 S.Ct. 2248 , 26 L.Ed.2d 809 (1970) (authority of Supreme Court to issue prohibition or mandamus can be constitutionally exercised only insofar as those writs are in aid of its appellate jurisdiction).

In Cohens v. Virginia, 6 Wheat. 264, 397 , 5 L.Ed. 257, 289 (1821), Chief Justice Marshall once more identified a “writ of prohibition or any other similar writ [as] in the nature of appellate process.” And in Ex parte Crane, 5 Pet. 190 , 8 L.Ed. 187 (1831), the Chief Justice, again writing for the Court, held that § 13 of the Judiciary Act of 1789 gave the Court power to issue mandamus to a trial court to require it to restore the text of jury instructions to bills of exceptions, thereby making the jury charge subject to appellate review. He explained: A mandamus to an officer is held to be the exercise of original jurisdiction; but a mandamus to an inferior court of the United States is in the nature of appellate jurisdiction. 30 U.S. 5 Pet. at 193, 8 L.Ed. at 94. 13 Thus it appears that mandamus or prohibition may issue in aid of appellate jurisdiction even though no appellate ³⁰³ proceeding is pending in the appellate court, at least where there is some potentiality of eventual appellate review by appeal or by certiorari. See Ex Parte Republic of Peru, 318 U.S. 578, 584-585 , 63 S.Ct. 793, 797-798 , 87 L.Ed. 1014, 1018-1019 (1943); Wolfson, “Extraordinary Writs in the Supreme Court Since Ex Parte Peru,” 51 Colum.L.Rev. 977, 978-981 (1951). The federal position is made clear in McClellan v. Carland, 217 U.S. 268 , 30 S.Ct. 501 , 54 L.Ed. 762 (1910).

In that case, McClellan and others petitioned the United States Circuit Court of Appeals for the Eighth Circuit for mandamus to require a United States district court judge to set aside certain stay orders and to proceed to try and determine a case then pending before him. The Circuit Court of Appeals refused to do so. The Supreme Court reversed. Pointing out that if the pending case were decided the circuit court would have appellate jurisdiction, the Supreme Court reasoned: There are not wanting decisions in the Federal courts holding different views as to the right to issue such writs as are involved in this case, before the appellate court has actually obtained jurisdiction of the case.

There are expressions in opinions of this court to the effect that such writs issue in aid of a jurisdiction actually acquired. But we think it the true rule that where a case is within the appellate jurisdiction of a higher court a writ of mandamus may issue in aid of the appellate jurisdiction which might otherwise be defeated by the unauthorized action of the court below. # $ sj: ¡¡: % * Inasmuch as the order of the ... [trial] court staying the proceeding until after final judgment in the state ³⁰⁴ court, might prevent the adjudication of the questions involved, and thereby prevent a review thereof in the circuit court of appeals, which had jurisdiction for that purpose, we think the court had power to issue the writ of mandamus to require the ... [trial] court to proceed with and determine the action before it. 217 U.S. at 280 , 30 S.Ct. at 504 , 54 L.Ed. at 766 . In short, a writ may issue in aid of appellate jurisdiction even though no case is pending in the appellate court. La Buy v. Howes Leather Co., Inc., 352 U.S. 249, 255 , 77 S.Ct. 309, 313 , 1 L.Ed.2d 290, 296 (1957).

And see Chandler v. Judicial Council, 398 U.S. at 112 , 90 S.Ct. at 1668 , 26 L.Ed.2d at 123-124 (Harlan, J., concurring); 16 C. Wright, A. Miller, E. Cooper & E. Gressman, Federal Practice and Procedure §§ 3932 & 4005 (1977). We are persuaded that this view of the appellate use of writs such as mandamus and prohibition is sound. If the use of a writ is “necessary to enable ... [the Court] to exercise appellate jurisdiction” it is in aid of that jurisdiction. Marbury v. Madison, 1 Cranch at 175 , 2 L.Ed. at 73 .

The power is necessary “to preserve the usefulness of ... appellate jurisdiction” if the failure to exercise it would cause the right to appellate review to “be but a shadow, pending which the substance might be lost.” Thompson v. M’Kim, supra, 6 H. & J. at 333 . In the case before us, the trial court acted in a criminal case that had been tried on the merits, and in which a guilty verdict had been entered. We have appellate jurisdiction, or at least potential jurisdiction, over that category of case. The potential exercise of that jurisdiction has been frustrated by the trial court’s refusal to enter a final judgment; instead it ordered a new trial.

Should the new trial result in an acquittal, from which the State could not appeal, any appellate review of the court’s action in ordering the new trial would be totally precluded. State v. Maples, supra, 402 So.2d at 353 . Under these circumstances, we have the power to issue mandamus or prohibition. To the extent that Henson v. State, 227 Md. at 660 , 180 A.2d at 301 ; Moore ³⁰⁵ v. License Com.

Pr. Geo.’s Co., 203 Md. at 505-506, 102 A.2d at 274 ; State v. Haas, 188 Md. at 67 , 51 A.2d at 649 ; and State v. Rutherford, 145 Md. at 368-369 , 125 A. at 727 , all supra indicate that a writ cannot issue unless there is an immediately appealable judgment below, or a case actually pending in this Court, they are overruled. 14 As to which writ should issue in a case of this sort, we are not disposed to engage in common law quibbles about the differences between mandamus and prohibition. If, as we hold, we have jurisdiction to issue to an inferior court peremptory writs in aid of our appellate jurisdiction, we have the power to take appropriate remedial action. How we label the document we issue is not important.

As Justice Holmes once remarked, “[i]t does not matter very much in what form an extraordinary remedy is afforded. ...” Ex Parte Simons, 247 U.S. 231, 239-240 , 38 S.Ct. 497, 498 , 62 L.Ed. 1094, 1096 (1918). And see 16 Wright, supra, § 3932 at 206-208. What is important is whether any prerogative writ should issue in this case. To that subject we now turn.

III

Should a Writ Issue in this Case? A. General Principles The common law extraordinary writs of mandamus and prohibition are just that-—extraordinary; even when the power to issue them exists, whether to take that action is discretionary. The principles governing the exercise of that discretion are much the same, whether the court that is asked to issue the writ is invoking superintending power or acting in aid of its appellate jurisdiction. “The power [to issue a prerogative writ] is one which ought to be exercised with great caution....” Ex Parte Burr, 9 Wheat. 529, 531 , 6 L.Ed. 152, 152 (1824). Ordinarily, a writ will not ³⁰⁶ lie to control the exercise of discretion.

Ex Parte Bradley, 74 U.S. (7 Wall.) 364, 376-377 , 19 L.Ed. 214, 219 (1869). Such a writ ordinarily will not issue when another remedy is available, Ferris, supra, § 212 (mandamus) and is not a substitute for appeal or writ of error; id., §§ 191 (mandamus) and 324 (prohibition). See also 16 Wright, supra, § 3932 at 205-206. Generally speaking, more than mere error must be shown.

Some commentators have said that under what they view as the traditional approach, writs appropriately issue “only to control actions beyond the jurisdiction of an inferior court, or to compel action that the court lacked power to withhold.” 16 Wright, supra, § 3933 at 213. But, according to Wright, in recent times the use of the extraordinary writ has “broadened to include use of the writs to correct clear abuse of discretion, and more recently ... to satisfy other peculiar needs for interlocutory review.” Id. Lewis Hochheimer espoused the “traditional approach,” at least as to writs of prohibition. Hochheimer wrote that “[t]he writ of prohibition issues from superior courts to arrest the proceedings of inferior courts ... when such proceedings are without or in excess of their jurisdiction” [footnote omitted].

L. Hochheimer, The Law of Crimes and Criminal Procedure, § 446 (1897). Earlier commentators, however, recognized that a prerogative writ could issue to control actions of a lower court that were not jurisdictional in nature. As' to mandamus, Blackstone asserts that it is designed to “inforce the due exercise of those judicial ... powers, with which [inferior courts are invested] ... not only by restraining their excesses, but also by quickening their negligence, and obviating their denial of justice.” 3 Blackstone, supra, at 110-111. And as to prohibition, the appellate court may apply it to command a judge and the parties of an inferior court “to cease from prosecution thereof” because the case “does not belong to that jurisdiction, but to the cognizance of some other court____” The same remedy is available “if, in handling of matters clearly within their cognizance, they ³⁰⁷ transgress the bounds proscribed to them by the laws of England____” Id. at 112.

In the case of Appo v. People, 20 N.Y. 531 (1860), the State petitioned the New York Court of Appeals for a writ of prohibition directing a trial judge to vacate his order granting a new trial in a criminal case. The defendant argued that because the court did not act outside its jurisdiction in granting a new trial, the Court of Appeals had no power to issue the writ. The Court held otherwise finding that “the writ lies to prevent the exercise of any unauthorized power, in a cause or proceeding of which the subordinate tribunal has jurisdiction, no less than when the entire cause is without its jurisdiction.” Id. at 542 . In Maryland common law mandamus has been described as a prerogative writ “grantable where the public justice of the State is concerned.” Runkel v. Winemiller, 4 H. & McH. at 449 .

It is a writ “to prevent disorder, from a failure of justice, where the law has established no specific remedy, and where in justice and good government there ought to be one____” Id. at 449 . From these authorities we glean that we may issue a prerogative writ if we believe the interests of justice require us to do so in order to restrain a lower court from acting in excess of its jurisdiction, otherwise grossly exceeding its authority, or failing to act when it ought to act. The question then becomes whether the trial judge’s grant of a new trial to Katz falls within one or more of these categories. B. The Power to Grant a New Trial in a Criminal Case The circumstances surrounding Judge Miller’s granting of a new trial are recounted at pp. 283-285 supra, and we need not repeat them fully here.

We recapitulate briefly- By denying Katz’s motions for judgment of acquittal, Judge Miller determined that there was sufficient evidence upon which a jury could base a finding of guilt. Neverthe ³⁰⁸ less, when the jury did exactly that, the trial judge ordered a new trial. It is clear from his choice of words in doing so that he engaged in an independent weighing of the evidence. Specifically, he summed up the case as a question of weighing a single witness’s credibility against the defendant’s.

Although he did not state that he disagreed with the jury verdict, he indicated that he ordered the new trial because of the “possibility” of injustice. He later stated that he himself was not convinced of the defendant’s guilt. Judge Miller acted under the assumption, therefore, that he had discretion to set aside a jury verdict and order a new trial where he considered the verdict to be against the weight of the evidence, and where he weighed the evidence in light of the credibility (or lack of it) of the State’s principal witness. That a new trial may be granted in a criminal case tried to a jury is undoubted.

The existence of the power is recognized in Md.Code (1987 Repl.Vol.) Art. 27, § 594, and in Md.Rule 4-331 and its predecessor rules. It was a power that existed at common law, at least as to misdemeanor cases, although not as to felonies. 15 As long ago as 1859 it seemed well-settled that Maryland courts could grant new trials after convictions. See Ford v. State, 12 Md. 514 (1859). The question we face is not whether a new trial may be granted, but when; that is, upon what grounds.

More specifically, can a jury’s guilty verdict be set aside and a new trial ordered because the trial judge has serious reservations about the credibility of the chief prosecution witness? At common law there could be a new trial if the court thought the verdict was against the weight of the evidence. 1 Stephen, History of the Common Law of England, 310, ³⁰⁹ 311 (1883). And see 5 L. Orfield, Criminal Procedure Under the Federal Rules § 33.5 (1967). Professor Hochheimer also asserts that a new trial could be ordered if the verdict was against the evidence.

L. Hochheimer, The Law of Crimes and Criminal Procedure § 184 (2d ed. 1904). In the case before us, Katz points to dicta in a civil case, Snyder v. Cearfoss, 186 Md. 360, 368-369 , 46 A.2d 607, 610-611 (1945). There our predecessors, stating that a new trial could be granted because a verdict was against the evidence or against the weight of the evidence, said that a court should examine the evidence and the verdict and if they could not be reconciled, then it should order a new trial, if it had a reasonable doubt that justice had been done. It is not clear from the Snyder opinion whether the trial judges (who had granted a new trial) did so on the basis of a credibility determination or merely because of what they perceived as very weak evidence produced by the plaintiffs, who recovered in the trial court.

But Katz believes that Snyder supports the action taken by the trial judge here. The State, on the other hand, refers us to State v. Devers, 260 Md. 360 , 272 A.2d 794 , cert. denied, 404 U.S. 824 , 92 S.Ct. 50 , 30 L.Ed.2d 52 (1971). In Devers we reviewed a decision of the Court of Special Appeals which had held that on a motion for new trial the trial court must weigh the evidence and judge the credibility, when the verdict is challenged as being against the evidence. “[OJnly in so doing is it able to ascertain whether there is such a preponderance of proof in favor of the accused ‘as to show that manifest injustice has been done by the verdict.’ ” Devers v. State, 9 Md.App. 366, 372 , 264 A.2d 291, 294 (1970) (citing Johnson v. State, 219 Md. 481, 483 , 150 A.2d 446, 447 (1959)). We reversed.

In the course of doing so, we considered whether motions for judgment of acquittal should have been granted. Referring to what was then Art. XV, § 5 of the Constitution (now Art. 23 of the Declaration of Rights), we noted that its requirements that in criminal cases “the Jury shall be the Judges of Law, as well as of fact” had at first precluded ³¹⁰ judicial consideration of such things as motions for judgment of acquittal, motions for directed verdict, or the like because the constitutional provision did not permit a judge to pass upon the sufficiency of the evidence. But by constitutional amendment effective 1 December 1950, a court was expressly authorized to “pass upon the sufficiency of