Smith v. State

Bowie, J., delivered the opinion of the Court. The appellant was indicted on the 9th of November, 1875, in the Criminal Court of Baltimore, for violating the provisions of the Code of Public General Laws, relating to lotteries. On the 18th of December following, he filed a suggestion in writing, that he could not have a fair and impartial trial in that Court, and prayed the record of the case might be removed to some adjoining Circuit for trial, with an affidavit that the suggestion was true, annexed. The Court after argument, overruled the motion for removal on the 20th of December, when the accused prayed an appeal.

On the 4th of January, 1876, the accused tendered his bill of exceptions setting out the preceding facts, and prayed an appeal. ⁵³³ The appellant insists that being indicted prior to the amendment of the Constitution, qualifying the right of removal in certain specified criminal cases, he was entitled to a removal of his case absolutely, upon filing his suggestion and affidavit, according to the original provisions of section 8, Art. 4. The State on the other hand maintains, that the amendment submitted by the Act of 1874, ch. 364, and adopted, as proclaimed by the Governor on the 15th of November, 1875, required the party making the suggestion, “to make it satisfactorily appear to the Court, that such suggestion is true,” which condition was not complied with. The appellant contends, that this amendment restricts, if it does not actually take away the right of removal in criminal cases, and cannot operate retrospectively on vested rights. Preliminary to the consideration of the main question, the State excepts to the jurisdiction of this Court, because the Act of 1872, ch. 316, conferring the right of appeal in criminal cases, requires the bill of exceptions to be taken at the trial, whereas the bill of exceptions in this case, was taken before the appellant had pleaded.

This objection we think is well taken. An application for the removal of a cause, must always be made before the trial commences. Its very object is to have a trial in some other Court. Hence it has been held that the right of removal must be exercised before the trial or any part of the trial is had in the Court ordering the removal.

The trial can only be said to commence in contemplation of the law regulating removals, when the jury is impanelled. Price vs. The State, 8 Gill, 302 . The appellant has mistaken the mode of bringing the question of the right of removal before this Court, in filing his bill of exceptions, instead of filing his petition assigning errors, in lieu of a writ of error. The right of removal, although a highly cherished adjunct to the trial by jury, is not one of those inalienable natural rights which cannot be regulated