McChan v. State

Orth, J., delivered the opinion of the Court. George McChan filed an immediate appeal from an order of the Criminal Court of Baltimore denying his pre ³¹³ trial motion to dismiss indictments 6108 and 6109, Docket 1966, pending against him. The State moved to dismiss the appeal as premature, claiming that the refusal to grant the motion to dismiss the indictments was not a final judgment. We grant the motion of the State with regard to indictment 6108 and dismiss the appeal as to that indictment.

We deny the motion of the State with regard to indictment 6109, entertain the appeal, and affirm the order of the lower court with respect to its refusal to grant the motion to dismiss indictment 6109. On 27 December 1966 indictments 6107, 6108 and 6109 were returned as true bills by the Grand Jury for Baltimore City and filed in the Criminal Court of Baltimore. Each indictment alleged that offenses had been committed by appellant on 21 December 1966. Indictment 6107 charged the murder of Albert Poland Polotsky by its only count; indictment 6108 charged assault with intent to murder Yiola Forrester by its first count and the assault and battery of her by its second count; indictment 6109 charged the robbery of Polotsky with a deadly weapon by its first count and related offenses by six other counts.

The State called indictment 6107 for trial in the Criminal Court of Baltimore, 1 appellant exercised his right to be tried by a jury under a plea of not guilty, and proceedings began to select a jury. Before the selection of the jury was completed, upon suggestion of appellant for removal, the case was removed to Anne Arundel County. Maryland Rules 542 and 738. Indictment 6107 was tried in the Circuit Court for Anne Arundel County before a jury, which rendered a verdict of guilty of murder in the first degree without capital punishment.

See McChan v. State, 9 Md. App. 317 (1970). The State then called indictments 6108 and 6109 for trial in the Criminal Court of Baltimore, appellant moved to dismiss the indictments, the motion was heard and de ³¹⁴ nied prior to trial, and the denial is the subject of this appeal. The general rule is that there can be no appeal except from a final judgment. A corollary to this rule is that action of a trial court which denies an absolute constitutional right, although seemingly interlocutory, will be reviewed without requiring complainant to proceed to final judgment.

The corollary is subject to qualification; even though a constitutional right is involved, action of the lower court rightfully exercising discretion as to the functioning of the right will not be so reviewed. Pearlman v. State, 226 Md. 67, 71 ; Code, Art. 5, § 12. The ground for the motion to dismiss indictment 6108 was that the State did not seek to try the indictments together but rather elected to try 6107 first and then 6108 and 6109. Appellant claims this denied him due process of law in that it renders any subsequent trial of 6108 unfair for reasons he designates.

But we do not reach the question whether or not the refusal to dismiss indictment 6108 was proper for we hold, for the reasons set forth in detail in Raimondi v. State, 8 Md. App. 468, that the order denying the motion to dismiss indictment 6108 was interlocutory and not a final judgment from which an appeal will lie prior to a trial on the merits. Our holding is consistent with the rationale of our decisions to like effect in Powers v. State, 8 Md. App. 487 , Davis v. State, 8 Md. App. 480 , Dodson v. State, 8 Md. App. 478 , Pearce v. State, 8 Md. App. 477 and Greathouse v. State, 5 Md. App. 675 . Double jeopardy was the ground advanced for the dismissal of indictment 6109. Consistent with the apparent rationale underlying the right to take an immediate appeal on the ground of alleged violation of the constitutional right to a speedy trial, see Jones v. State, 241 Md. 599 , Harris v. State, 194 Md. 288 , we held in Brown v. State, 2 Md. App. 388 , that an immediate appeal would lie, prior to a trial on the merits, from the denial of a motion asserting a