Larch v. State

Collins, J., delivered the opinion of the Court. This is an appeal from a judgment, based on a verdict by a jury finding the appellant guilty on January 13, 1952, of receiving stolen goods. Before the trial, the judge ordered the clerk to give the jury list to the appellant and the State. The judge and counsel then went to the judge’s chambers where the following occurred.

Mr. Pagenhardt, attorney for the defendant, stated: “The defendant moves for a change of venue in each of the five cases now pending against him on the ground that public opinion is so aroused in Garrett County that it is bound to have an adverse effect on any jury that may be selected.” When asked what affidavits he had with reference to prejudice in the community, defendant’s attorney replied that he had one from Miss June Smith, a beautician, no relation to the defendant. Neither this affidavit nor the affidavit made by the defendant appears in the record before this Court nor in the transcript. Mr. Pagenhardt referred also to an article from the local newspaper ⁵⁴ which might cause prejudice. This article does not appear in the record or the transcript and from the discussion in the judge’s chambers it appears that it referred first to the juveniles charged with the larceny of the goods, and then referred to the defendant, Calvin Larch, who was charged with and indicted for receiving stolen goods from several of the juveniles.

The change of venue was denied. The appellant contends here that because of the affidavits from himself and Miss Smith and the newspaper article, the contents of none of these being before us, a change of venue should have been granted. Article 4, Section 8 of the Constitution of Maryland provides in effect that in all cases where the penalty is death, upon suggestion in writing under oath of either party that such party cannot have a fair and impartial trial in the Court in which the case is pending, the said Court shall transmit the case to some other Court having jurisdiction. In cases of penalties other than death “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.” Code Article 75, Section 109 contains the same provisions.

Chapter 69 of the Acts of the General Assembly of 1952, effective June 1, 1952, makes the removal mandatory in all cases “punishable by death or by imprisonment in the Maryland Penitentiary”, where such suggestions are filed. Neither this Act of 1952 nor its constitutionality is before us in this case, as the alleged offense occurred before the effective date of that Act. The offense for which the appellant here is indicted provides for confinement in the penitentiary, or in the house of correction, or in jail. Code Article 27, Section 562.

In Downs v. State, 111 Md. 241 , 73 A. 893 , the appellant was charged with larceny and receiving stolen goods in Baltimore City. He filed a petition for removal of the cases and an affidavit that he could not have a fair and impartial trial in the court of first instance. In ⁵⁵ the affidavit he also alleged that there was intense and bitter feeling against him in the community; that in the Baltimore newspapers it had been unqualifiedly and repeatedly represented that he was guilty of the charges; and that said newspaper accounts were prejudiced, sensational and false, composed largely of public interviews, statements, editorials and caricatures. The newspaper accounts were filed as exhibits.

Also filed with the petition were seventeen affiadivts that for reasons assigned therein, the appellant could not have a fair and impartial trial in Baltimore City. After a hearing on the petition and argument of counsel the trial Court refused to remove the case because it did not satisfactorily appear that the appellant could not have a fair and impartial trial in that court. The appellant appealed to this Court. Here it was pointed out that because of abuse of the unqualified privilege of removal provided for in the Constitution of 1867, an amendment had been made providing that in non-capital cases “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”.

This Court there held that until it does so appear no such right of removal exists. After reviewing the affidavits and the newspaper clippings, a privilege we are not given in the instant case, this Court