Kardy v. SHOOK, J.

⁵²⁸ Prescott, C. J., delivered the opinion of the Court. There are four appeals (Nos. 324, 343, 344, and 345) which will be considered and disposed of in this opinion. This may be done conveniently, because the questions to be determined, with minor exceptions, are, for all practical purposes, the same. Appeal 324—Statement of the Case and Its Facts.

The State’s Attorney for Montgomery County, in his official capacity and as an individual, filed a petition against Judge Shook, associate judge of the Sixth Judicial Circuit, the clerk of the Circuit Court and the sheriff of Montgomery County. He sought ex parte and final In junctions restraining the appellee-defendants from enforcing certain orders passed by Judge Shook. Counsel for certain defendants (Sherry in Appeal No. 343; Scott in Appeal No. 344; and Stull in Appeal No. 345), who had been indicted by the Grand Jury, filed, in their respective cases, motions for “Discovery and Inspection.” At this time, we shall set forth in some detail only what was requested in Sherry’s petition (Appeal No. 343) and what relief the court granted as a result thereof, for it will be easier, we think, to follow the differences in the questions involved in the appeals if we state them under separate headings. Sherry’s petition requested “that in accordance with Rule 728 a of the Maryland Rules” he be given, by the State’s Attorney, certain information and reports and allowed to make certain inspections.

In this petition, he did not specifically seek the opportunity to take the deposition of any witness, but, inter alia, asked that the State’s Attorney be required to furnish him “with all details of the alleged offenses * * * including, but not limited to: (a) the substance of the testimony to be [adduced] at the trial by Jeanne Virginia Adkins [the prosecuting witness] and all other witnesses whom the State intends to call 1 ⁵²⁹ * * No allegation concerning the necessity or desirability of taking the deposition of any witness was contained in the motion. The only allegation as to why the specific items actually asked for were requested was that the defendant was charged “with * * * serious offenses and the requested discovery and inspection is necessary and vital to the preparation” of his defense. Apparently construing the above as a request by the defendant to take the deposition of the witness Adkins, the trial court, on October 19, 1964, passed an order which granted “the motion of the defense to1 take the deposition of Jeanne Virginia Adkins.” On the following day, similar orders were passed in Appeals Nos. 344 and 345, as we shall see below. When the petition praying for an injunction, together with its affidavit and exhibits, was presented to Judge Shure, he denied the request for an ex parte injunction and signed an order to that effect, Maryland Rule BB 73, and, thereafter, petitioner appealed here.

This Court ordered that the appellant’s brief in Appeal No. 324 be considered also as appellant’s brief in Appeals Nos. 343, 344 and 345. No motion to dismiss this appeal (324) has been filed. Appeal No. 343—Additional Statement of the Case and Its Facts. This is a direct appeal from an order of the trial court, dated October 19, 1964, which granted a defendant below in a criminal prosecution the right to take a pre-trial deposition of the prosecuting witness.

The defendant, who is not indigent, was indicted for assault with intent to rape and simple assault, and, over objection by the State’s Attorney, the above order was passed. The appellee contends the order is not one from which an appeal may be taken, because it is interlocutory in nature, and, therefore, the appeal should be dismissed. He further contends that if the merits of his case be reached the trial court had ⁵³⁰ inherent power to pass the order, that he has a constitutional right to take the deposition of witnesses before trial, and the fact that he waived the right to a preliminary hearing before he employed counsel is an additional reason why he should have the right to take the deposition. Appeal 344—Statement of the Case and Its Facts.

This, too, is a direct appeal from an order of the trial judge. The defendant, charged with manslaughter, filed a motion for discovery, “pursuant to the [Maryland] Rules of Discovery in Criminal Causes,” requesting, among other things, the “production of [the] substance of any statement made by any persons other than defendant,” and “production of verbatim copy of any statement made by any person other than defendant.” No request was made to take the testimony of the State’s witnesses, and the only allegation as to- why the specific items actually asked for were requested was that “said items sought being material to the preparation of defendant’s case * * At the time of filing his motion for discovery the defendant also filed a motion for a bill of particulars. The trial court, in her order, stated she had held in the Sherry case, supra, (Appeal No. 343), that the accused had a right to examine the witnesses for and against him on oath prior to trial, and held that “this right the court holds is available to the defendant herein.” No ruling was made on the motion for a bill of particulars. Apparently feeling that the above order granted more relief than was actually requested, the court made no ruling, insofar as the record discloses, upon the other items of relief specifically asked for in the motion for discovery.

The appellee, who is not indigent, contends that “an accused has a fundamental right, under both the State and Federal Constitutions to broad criminal discovery, including the taking of depositions of the State’s witnesses,” and he, too, advances as one of the reasons he is entitled to this right the fact that he was indicted by the Grand Jury without a preliminary hearing. Appeal 345—Statement of the Case and Its Facts. The defendant-appellee herein, who is indigent, is charged in one indictment with armed robbery, attempted armed robbery, robbery and larceny; in another with murder and murder in the ⁵³¹ perpetration oí a robbery. The indictments were returned by the Grand Jury without a preliminary hearing being held.

After indictment, his counsel filed a motion for discovery and inspection “in accordance with [Maryland] Rule 728 a,” in which he prayed the discovery of many things. No request was made to take the deposition of any witness, and the only reasons assigned for the discovery requested were that the defendant was charged with “serious offenses and the requested discovery and inspection is necessary and vital to the preparation of the defense* * *.” The trial court ordered the State to furnish certain of the information requested, and took under advisement a “request for the substance of the testimony of the State’s witness” to be considered with a similar request in Sherry, supra, '['hereafter, defendant filed a “Motion to Exclude Evidence,” in which he requested a pre-trial hearing with respect to the inadmissibility of certain evidence. His counsel then wrote to the trial court stating that he did not desire “to forclose the possibility of taking depositions,” but he did request that any ruling “on the right of this defendant to take [pre-trial] depositions be delayed” until counsel were in a position to “give specific notice to a specific deponent.” The State’s Attorney furnished all of the information and allo-wed all of the inspections ordered by the court. This left for consideration only items 2 (f), (g) and (h) of the motion for discovery, which, in essence, requested under (f), “the substance of the testimony to be given at trial of all witnesses” of the State; under (g), the names and addresses of “all persons whom the State” or anyone on its behalf had interviewed or interrogated in connection with the charges against the defendant; and under (h) copies of police and investigators’ reports.

The court denied the request contained in (g), and granted the right to defendant’s counsel to inspect “any reports of the Montgomery County Police relative to the investigation of the alleged offenses.” (The State raises no objection here to this portion of the order.) With regard to the request contained in (f), the court, again apparently feeling that in granting the defendant the right to take the depositions of the State’s witnesses was affording him greater relief than he had asked for, stated that he was entitled ⁵³² to “depose the witnesses who are to appear against him” and, therefore, “it is unnecessary for the court to require the State to furnish [the] substance of the testimony as requested in subsection (f) * * The appellee has filed a motion to dismiss the appeal, assigning the same reasons as those stated in Appeals No. 343 and 344. He also contends that the trial judge’s order permitting him to take the deposition of the State’s witnesses is sustainable on two grounds: the judge’s discretionary power to do so; and appellee’s constitutional right under Article 21 of the Declaration of Rights to do so. He further contends that he is being denied his right to a speedy trial. Consideration and Determination of Appeal No. 324.

There can be little doubt that Judge Shure properly refused the injunction prayed for herein. Although he stated no reason in his order of denial, his action did not necessarily mean that he had arrived at the conclusion that a defendant under indictment has an absolute right to take a pre-trial deposition of the State’s witnesses. His reasons were more probably those that we are about to assign as to why his refusal was correct. The appellees first contend that the State’s Attorney neither as an individual nor in his official capacity, has standing to bring an action of this nature, citing, among other authorities, Bar Assoc. v. District Title Co., 224 Md. 474 , and 28 Am.

Jur., Injunctions, § 178. Also compare Wells v. Price, 183 Md. 443 . Because of what we shall state below, it is unnecessary to decide this point. For the purposes of the case, we shall assume, without deciding, that appellant has standing to maintain the suit.

It has long been recognized that courts of equity, in the exercise of their power to grant injunctive relief, have no superiority over the courts of law. When the jurisdiction of an equity court which pertains to the restraint of judicial proceedings is invoked, the injunction is directed not to the presiding judge of the court, but to the parties litigant, and in no manner denies the jurisdiction of the legal tribunal. An injunction of this nature controls the course of conduct of the person, or persons, to whom it is addressed, and is utilized to prevent him, or them, ⁵³³ from using the process of courts of law where it would be contrary to good conscience to allow the party, or parties, to proceed. This class of injunctive relief is based upon the ground that some unfair advantage is being obtained, or has been obtained, in the law court, which, under the circumstances, equity, alone, can prevent from becoming effective. 1 High, Injunctions (4th Ed.), §§ 45-49, and cases there cited; Daniels v. City of Portland, 265 P. 790 (Or.); 2 Story, Eq.

Jur. (14th Ed.), § 1195; 43 C.J.S., Injunctions, § 50. Cf. 21 C.J.S., Courts, § 501; Horsey Co. v. Martin, 142 Md. 52 ; Keerl v. Keerl, 28 Md. 157, 160 ; Preston v. Poe, 116 Md. 1 ; Withers v. Denmead, 22 Md. 135, 146; Loft, Inc. v. Buckler, 148 Md. 647 . It would, indeed, be an incongruous and dangerous situation of one Circuit Court judge of this State could paralyze the entire administration of justice in the law courts thereof, both civil and criminal, by way of injunction.

And this is not permitted. As stated by High, op. cit., § 46; “* * * a court of equity is devoid of jurisdiction to grant an injunction against the judge of another court to restrain him from acting in or making orders in a particular cause. Every judge is supreme and independent in his own sphere, and cannot be restrained in the discharge of his functions by the process of injunction. While, therefore, equity may in proper cases enjoin suitors in another court from proceeding with their cause, the injunction can not operate upon or run against the judge of such court.” And it necessarily follows from the above (although there is some authority to the contrary) that the clerk and sheriff of the judge’s court cannot be restrained from the execution of their duties in carrying out the commands of the processes and the orders of that court.

They are the officers who issue and put into force and effect the court’s processes and orders. If they should be restrained from executing their duties, it would be tantamount to, and in effect, enjoining the judge. Tyler v. Hamersley, 44 Conn. 419 ; Jones v. Jones, 1 Bl. 443 , 461; 32 C.J., Injunctions, § 479. We, therefore, hold that the action of Judge Shure in denying the injunction was correct.

Consideration and Disposition of Appeals 343, 344 and 345. In considering and disposing of these appeals it is necessary to determine but one point which is raised in each of them; ⁵³⁴ namely, are the orders appealed from interlocutory in nature (and not included in the exceptions contained in Code [1964 Cum. Supp.] Article 5, §§ 1A, 7) and, therefore, not appeal-able? Code (1957), Article 5, §1; City of Baltimore v. Moore, 209 Md. 516 .

The question is no longer an open one. Ordinarily (and certainly in the absence of exceptional circumstances), an order of the trial court permitting the taking of pre-trial depositions is an interlocutory one, and not appeal-able. Montgomery Co. Coun. v. Kaslow, 235 Md. 45 . Cf.

Lee v. State, 161 Md. 430 ; State v. Haas, 188 Md. 63 . Consequently, all three appeals must be dismissed. 2 Request by Attorney General For an Expression of our Views upon the Issues. If these were ordinary appeals, the above would conclude our consideration and determination thereof. However, the Attorney General, because of the nature of the issues involved, has asked that we express our views thereon.

Previous requests of this nature have been granted in exceptional cases. See, among others, the cases of Lee v. State, supra; Walter v. Montgomery County, 179 Md. 665 ; Penny v. Md. State Police, 186 Md. 10 ; State v. Haas, supra; Whittle v. Munshower, 221 Md. 258 ; Bd. of Ed. v. Montgomery County, 237 Md. 191 . The granting of such requests has usually been based upon weighty public interest being involved in the issues raised, and we think the issues herein are of sufficiently great public importance and concern as to justify our granting of the State’s request. For the first time in the history of the State, a judge, by order, has directed, at the request of indicted defendants, the taking of pre-trial depositions of the State’s witnesses, without the slightest showing, or even pretext, that the depositions were to be taken pursuant to the authority contained in Maryland Rule 727.

Such a practice, if sanctioned, would revolutionize the time-honored and well-established criminal proce ⁵³⁵ dure of this State. It would put the State to untold expense, not only in indigent cases where the State, in all probability, would be required to bear the expense of transcribing the depositions and allowances for court-appointed counsel’s time, but also in non-indigent cases, and additional Assistant State’s Attorneys would have to be employed. Moreover, it would prolong the trial of cases on their merits (at a time when most courts are experiencing great difficulty in keeping abreast of their calendars), where defense counsel would constantly attempt to impeach the State’s witnesses when their testimony given showed any slight variation from their depositions. In a complex and lengthy trial, such a course might easily confuse a jury and mislead it in the determination of the real issues involved.

In addition, it would pose many novel, intricate, and complicated questions when several defendants were indicted jointly. And it is to be noted that another judge of the same circuit as the judge who passed the orders herein has made a ruling diametrically opposed to the orders passed herein. State v. Monterrey, Daily Record, December 1, 1964. Although the above is not intended to be a statement of all the reasons as to why the issues involved in these appeals are of grave public concern, we feel it is sufficient to establish that, if permitted to continue, the procedure adopted by the trial court entails pervasive consequences in the administration of the criminal laws of this State.

Mention is made in appellees’ briefs that the State’s Attorneys of Maryland have displayed no interest in the outcome of these appeals. The answer to the statements, if they have any significance here, is in the record extract, where it is shown that the “State’s Attorneys’ Ass’n of Maryland unanimously disapproved and rejected” a proposed Rule of Court, which would have permitted, in the discretion of the trial court, the taking of depositions by defendants after the filing of “indictment or information” under certain circumstances. We proceed to a statement of our views. Our Views.

The trial judge based her power and authority to pass the orders upon her “inherent discretionary power [to] allow such ⁵³⁶ depositions,” and the provisions of Article 21 of the Declaration of Rights which state that in all “criminal prosecutions” every man has a right, among others that are named, “to be confronted with the witnesses against him” and “to examine the witnesses for and against him on oath.” (Emphasis added.) It is conceded, as indeed it must be, that no explicit authority to take pre-trial depositions is contained in any Maryland statute or rule of court, or in the Maryland Constitution. Hence, we may confine our considerations, at least in the main part, to the two grounds named by the trial court, and the claim raised by the appellees that they are entitled to take the depositions under the constitutional guarantees of the Fourteenth Amendment. Inherent Power of the Trial Court. In discussing this question, it is not our duty or function to decide what the modern trend 3 of statutory or constitutional provisions with reference to the taking of pre-trial depositions in criminal cases is elsewhere, or what the law with reference thereto may be some day; our function, at this time, is to state our views as to what the law of Maryland is at present.

It will be noted that Maryland Rules 727 and 728 both relate to “Criminal Causes,” with Rule 727 applying to “Depositions” and Rule 728 to “Discovery and Inspection” (more will be said of these Rules later). As they apply to criminal causes,