State v. Dashiell , 6 H. & J. 268 ( 1824 )

The opinion of the court was- delivered by

Martin, j.

At November term, 1823, an indictment was found in Baltimore city court, against George Dashiell, for an assault and battery’ on Anne G. Dorsey. Dashiell presented to the court a suggestion, in writing, supported by affidavit,- stating he could not have a fair and impartial trial in that court, and prayed that the record and proceedings, against him might be removed to an adjoining county court, for trial. Upon this prayer, the judges of Baltimore city court ordered the record and proceedings to be transmitted to Baltimore county court uuder.an act of assembly passed in the year 1821, ch. 244. A trial took place in that court ®t March term 1824, and George Dashiell was found guilty of the offence charged against him. A motion was made, in arrest of judgment, because the act of 1821, ch. 244, a. 2, (under which the removal was made,) was unconstitutional and void, and the judges of Baltimore county court bad no jurisdiction to try the prosecution. This motion was sustained; and a writ of error, has been brought on the part of the state to review that decision,.

The act of 1804, ch. 55, being confirmed by the act of 1805, ch. 16, became a part of the constitution of this state, and its provisions could be altered only by an act of assembly that had received the sanction of t\vo Successive legislatures., By the third section it is. enaefed, “That if any party presented or indicted in any of. th<j county courts of this state, shall suggest., in writing, to the court in which such prosecution is depending, that a fair arid impartial trial cannot be had in such court, it shall and,-may bo lawful for the said court to order and direct the record of their proceedings, in the said prosecution, to be, transmitted to the judges of any adjoining county eoi;rt foe. trial, and the judges of such adjoining county court, shall hear and determine the same, in the same manner as if such prosecu.tion had been originally instituted therein; and: provided, that such further and other remedy may be provided by law in the premises as the legislature may direct and enact.’? This section was intended to secure to every person charged with ,a criminal offence, in the courts of this state, a fair and impartial trial; and to attain this object, the courts are directed, upon a suggestion being made in writing, that a fair and impartial trial cannot be had in the court, to, whom the suggestion is made, to remove the record and proceedings from the court in which the presentment had been found, to an adjoining county court for trial, liras to enable the party accused to make his defence before a different jury from that to which it must have been submitted without this provision, and before a jury summonedfoy a. different officer. The right of removal from one court» ty to another .to obtain a fair and impartial trial, where lifef liberty and fame, may be endangered, is a great and inestimable privilege. It is one of the most prominent and valuable features in the judiciary system, and, as before, observed, was intended to be as permanent as any other, part o'f the constitution. The.provisions of the a,ct of 1804, like all other constitutional provisions, are in general terms, and it is. the, province of the legislature by law, to point out in detail how those provisions are to be carried into effect. This was the sole object of the act of 1805, ch. 65, arid is so declared to be, in the preamble of that law. ■

' The necessity of- laws, to carry into practical effect, the, general provisions of the constitution, is felt by every one, conveysant with courts of justice, The trial by jury is secured by the constitution, but that would be a mere' dead letter without the aid of the legislature to direct the manner it should be conducted.

The act of 1804 secures the general right of removal-from one county court to the court of an adjoining, county % the act of 1805 does not attempt to deprive the party o£ this right, but only points out tire manner and terms upon which it,shall be enjoyed. It is not repugnant to the act pf 1804, but only directs, in detail, how the general pro,, visions of that act shall be carried into operation.

The act of 1809, ch. 138, s. 20, is clearly a legitimate,, exercise of the power given to the. legislature by the proviso' in the 3d section of the act of 1804, ch. 55. It appoints a further and'other remedy to secure a fair.and impartial trial, but does not interfere, with the right of removal from the. court of one county to that of another county. The act of 1804 only provides for, the removal of the. prosecution, when the presentment is found in. a county. court, and this excited doubts — whether it authorised a removal from other courts, having criminal jurisdiction, as for instance, special corirts of. oyer and terminer, &c. The act of 1809 only extends the power of-removal to every court having criminal jurisdiction, and thereby gives a further and other remedy, the,, act of 1804 having confined it. to county courts. '

It has been conceded by the counsel on both sides, and indeed is a position that cannot at this time be controverted, that if the act of 1821, ch, 244, is repugnant to the constitution of this state, it is the duty of this court to declare it null and void. In the second section it is enacted, “That in all cases of suggestion and affidavit for removal of criminal causes from Baltimore city court, the judges of the said court shall have authority to order the same to be removed to Baltimore county court, as if the said court were in an adjoining comity; and that in all cases of suggestion and affidavit for removal of criminal causes from Baltimore county court, the judges of said last court shall have authority to order the same to be removed to Baltimore city court, as if said last court were in an adjoining county.”

This law authorises Baltimore city court, upon applications for tile removal of prosecutions, to send the same/bf trial, not to an adjoining county court, but to Baltimore county court; and invests Baltimore county court with authority, upon applications being made to them for removal, to transmit the record to Baltimore city court for trial— This is said to be a further and other remedy under the proviso in the Sd section of the act of 1804, ch. 55. The evil complained of, and to be remedied, was, that a party accused was compelled to try the prosecution against him in the county court in which the presentment was found, although he was satisfied he could not there have a lair trial, from prejudices that might extend over the whole county, or be entertained by the sheriff who returned the jury for that comity. The constitutional remedy was to remove the trial to another county; where it was to be presumed those prejudices did not exist, but which would, at all events, secure the party a trial before a jury summoned by a different officer. The act of 182) declares, that the removal shall not of right be to another coiinly, but one court máy remove the trial to another court, both in the same county, where the same persons may be summoned as jurors, and where the same sheriff must return both ju - ries. This is not a further or other remedy; in fact it is no remedy, but a denial of a constitutional right; for although the prosecution is removed, the trial must be had before a jury of the seme county, and returned by the «awe officer, and the party accused may become as much the victim of prejudice, as if the trial had been in the court where the presentment was found.

The. constitution directs the removal to another county,' to avoid the prejudices that may exist in the county where ilie presentment-is found! The act of 1821 declares the court shall not be bound to remove it to another county, büt tó A court in the sanie .county; whatever prejudiced may be there ágáinst the party! The constitution declares that the party accused shall hávfe a. right of trial before á jury, composed óf méri from a different county, and summoned by á different sheriff; the act of 1821, although it grants a removal; sends it for trial before a jury taken from the samé county, perhaps ¡composed of the same individuáis, and certainly returned by the game Sheriff. The act of 1821. empowers the court to refuse the removal of a prosecution to an adjoining cduntyl This right is secured by the Constitution, to the party, to enable him to obtaid á fair and impartial trial. The act of 1821; is therefore repugnant to the constitution — It is violatory of both its letter,-and spirit, and can have lio legal effect.

This court concur in opinion With the judges of Baltic more county cohrt, and affirm their proceedings.

JUDGMENT AETIK.HED;